Appendix — Green v. Louisiana
Supreme Court brief1980
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VOL. Il
IN THE
Supreme Court of the United States...
OCTOBER TERM, 1979
No 6-29-2045
JEFF H. DUPUIS, BERNIS H. DAVISON
JOHN ZERBE and WILBUR L. SMITH
Petitioners
VERSUS
STATE OF LOUISIANA
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF LOUISIANA
GRISBAUM & KLEPPNER
FERDINAND J. KLEPPNER
Professional Building
3224 North Tumbull Drive
Metairie, Louisiana 70002
ATTORNEYS FOR PETITIONERS
Hee
APPENDIX A
1306) 307}
evidence the original copy of
the search warrant. I have it marked
for identification as ‘“‘D-1”’.
BY MR. MCHUGH: No objection.
A Could you substitute a copy of it? This is a record that
BY THE COURT: Yes, we’ll order that a copy be
substituted, as it may be required
for other purposes or other pro-
ceedings, too.
Q Judge Hebert, as you look at the original copy of the
search warrant, you can see there are two different
shades of ink; is that correct?
A Yes.
Q Does this reflect additions or deletions from the original
version as it was originally written?
A Well, I don’t know what you mean by “original”... .
Q__ All right. As you wrote it the first time, did you add any-
thing to it subsequently to the time that you originally
wrote it and signed it?
A Well, I made — later on in that — if you want to know if
I made a different.....
Were there alterations made?
Yes; but to reflect the intent of the warrant, I did
[307] add certain words to make it clearer.
(307) | [308]
Q When did you do this?
A In my office on June 16th in the morning. I began —
I wrote out — the majority of the warrant was written
out earlier that morning, 12:09 a.m. when I issued the
warrant. I wrote out most of it at that time; and when
I got into the office that morning, I thought it should
be a little bit clearer to reflect the intent of the warrant,
so I added a few words that are in lighter ink. The
lighter words in ink were added. You want me to say
what I added to the warrant?
Q Were any changes made after the arrest?
mM Fis53
Q Okay. The arrest was made shortly after you authorized
the telephonic search warrant.
A Idon’t have anything on an arrest... .
BY THE COURT: Why don’t you suggest a time?
Q_ That’s what I’m going to — so the arrest was made at
approximately 12:25 a.m. on June 16th. You testified
that you made additions to the original in your office
on June 16th; is that correct?
A Well, I don’t know if you’d call them additions. I made --
I wrote in the words that I thought made the warrant
clearer as to what was being — what I had authorized
the night before. I felt that it wasn’t complete as I had
authorized him orally, [308] and I added the words
to reflect that.
A-2
[308] [308]
Q What were these words, Judge Hebert? ©
A As far as the — I had changed where it says, ‘““The person
of,” blank — there was a blank space and I put, ““The
vehicles located,” since we weren’t dealing with any
search of any purposes -— or any specific premises
like — I was aware that I wasn’t authorizing a search of
a house, but rather the vehicles; so 1 thought it would
be clearer if I put in “vehicles”... .
When had you first written the warrant?
That evening — I mean, the early morning, 12:09.
12:09?
(Witness indicates yes.)
QO + HOH F- A
And as you originally wrote the warrant, the warrant read
or was in authorization to search persons at Route 1,
Box 674; an arrest was made pursuant to this warrant;
and the following morning, you changed it to read “‘the
vehicles located”’ at the certain address; is that correct?
A I didn’t change it.
Q Or you added the words “‘the vehicles located’.
To make it clear as to what I had authorized. When I
reflected on what I had authorized him to do, I realized
when I looked at the form that I wasn’t authorizing a
search of a certain house, but rather the vehicles located
at that location; so I inserted those words, “‘The vehicles
located on the premises.’”’ The words, “The vehicles
located,” was added as well as the description of the
A-3
{309} [309]
{309] property that they were seeking they alleged
to be concealed. He had said “‘marijuana’”’ and I got the
impression that it was “‘and other contraband’’, so I
thought it would be made clearer.....
Q Are warrants to be given a narrow construction at the
time they are issued, or just the warrant once it is
authorized is a license to go in and search persons,
places and things?
A Well, generally when you have a search warrant -— when
the search warrant is presented to you, it’s specific as
far as the persons or places or as specific as they can be.
Sometimes they don’t know — they don’t know the
name of the person or — they’re supposed to describe
it as best they can and as far as what’s being concealed
or what they want to search for.
I don’t think I changed the intent of the warrant.
I had — this is the authorization I gave him, and that
morning I just wanted ....
Q_ Id like to read to you from Rule 41, which authorizes
the telephonic search warrants, language contained
within Section “‘C”’ (2) (B).
BY THE COURT: Repeat that.
Q_ Rule 41, “‘C” (2) (B) under the heading of ‘“‘Application”’;
and the little “C’’ is under the heading of “Issuance
and Contents’’. The (2) is under the heading of ‘‘War-
rant Upon Oral Testimony”’. It reads as follows: “‘The
federal magistrate shall
** *
A-4
[330] [330]
{330} BY MR. VIDRINE: I think I’ve established
this before, but just to
make certain, specifically
Judge Hebert, who made the transcription? Was it your
office, or was it the office of Mr. Joachim with the
United States Customs?
It was the United States Customs office.
And these are the people who requested the search war-
rant?
Yes.
BY MR. VIDRINE: _ I tender the witness.
BY MR. ANDREW HALL:
Q
> OH © HD PS
Judge Hebert, you listened to that tape along with us,
didn’t you?
Yes.
You followed it in the transcription, didn’t you?
Yes, I did.
Now, the transcription is not accurate, is it?
No, it isn’t.
A-5
[330] [331]
Q
Oo ff # 2. &
oe ? 4 2?
Yet on June 21, 1978, pursuant to the United States Rule
of Criminal Procedure you filed in the official records
of the United States District Court a certificate attesting
to the fact that the transcript was true and correct and
accurate; [331] is that right?
Yes.
But it wasn’t, was it?
No, I relied on my secretary to review the transcript with
the tape.
You didn’t do it, yourself?
No.
You’re familiar with Rule 41, aren’t you?
Yes.
It doesn’t say to rely on your secretary or anybody else;
it’s your duty to certify it; isn’t it? True?
Yes. I have a lot of duties that I delegate to my employees.
But this is a judicial duty?
(No response.)
Magistrate Hebert, you certainly don’t have your secretary
try your cases for you, do you?
BY MR. McHUGH: Objection, Your Honor.
A-6
[331] [332]
BY THE COURT: That’s very argumentative and has
no probative value.
Q_ Now, it is true that federal courts including the magis-
trate’s role are courts of limited jurisdiction; is that not
correct?
A Yes.
Q- And when we deal in areas of criminal law and criminal
[332] procedure, you are involved in violation of
federal law, not state law; correct?
A Yes.
Q___ And in order to be a violation of federal law, there has to
be an interstate of foreign aspect involved; true? In this
particular type of offense.
A ITmnot sure.
Q You’re not sure. But in connection with taking statements
from a United States law enforcement official for
purposes of issuing a search warrant, you are doing it
in order to determine whether or not there’s been a
violation of federal law; correct?
A Ithink....
BY MR. TUCKER: Your Honor, I’m forced to object.
I feel that the attorney is simply
harrassing the magistrate. The law
is very clear, and I’m sure that the
Court can read it, can interpret it,
and does not have to have an
[332]
[340]
interpretation of the law or what
the smagistrate thinks the law is.
I think the Court can take judicial
cognizance of it, and it has at hand
sufficient documentary evidence
of which the Court
*
[340] BY THECOURT: Are there any other ques-
tions of the defendants?
(All counsel indicate no questions.)
BY MR. McHUGH: No questions.
(Witness excused.)
BY MR. ALLEN HALL: Your Honor, we respectfully
BY MR. KLEPPNER:
BY MR. HALL:
BY THE COURT:
submit to the Court that
since there are some obvious
alterations in the original
warrant, it would be proper
for that to be maintained in
the records of this case with
notation being rade to the
federal court.
I would have to join in that,
Your Honor.
We all join in.
I think Judge Hebert brought
out the portions that he says
A-8
[340] [343]
were inserted later on that
morning; but if he didn’t, we
can at this time for clarifica-
tion purposes have him give
us in quote and unquote the
* * *
[343] A Customs patrol officer.
Q
A
Le)
~~ @ + Bf © FF 0D °?
And where were you stationed?
Mobile, Alabama.
Did you spend your entire career with Customs at Mobile,
Alabama with the exception of your move here?
No, sir.
How long were you at Mobile?
One year and nine months.
Where were you prior to that?
Presidio, Texas.
You were also a customs officer at Presidio?
I was customs inspector at Presidio.
And how long were you there?
I was in Presidio for a total of six years.
A-9
[343] t [344]
Q
Q
Does that complete the total time that you’ve been with
Customs?
Yes.
Now, Mr. Joachim, did you participate in surveillance
activities and the ultimate obtaining of a telephonic
warrant for a search on or about June 15th or June
16th, 1978?
I did obtain a telephone search warrant.
When did your surveillance activities begin?
On — at approximately 2:30 or 3:00 on the afternoon
of the 15th.
What did they consist of at that time?
For my part, a drive by the residence.
How many times did you drive by the residence, and
what residence was that?
[344] A _ I drove by the residence twice, and that was the
Q
A
Q
A
residence at Route 1, Box 674.
Is that in — where is that located?
I believe it’s in Henderson.
Is that in St. Martin Parish?
Yes, sir, I believe it is.
A-10
j(344] [344] 64
Q
OH >» OH &—» HOH F-— HO FY HO PP
>
©
Did you conduct any further surveillance after the two
drive-by’s that you described?
No, sir, I did not, personally.
And during the drive-by’s, did you note anything unusual?
I don’t really understand what you mean.
Well, did you see — were there automobiles there?
Yes, sir.
Were there people there?
I didn’t see any people, no, sir.
Were there trucks there?
There were trucks.
Were there children there? Well, you didn’t see any people
at all.
No, sir.
Now, when, if ever, to your own knowledge, did a conti-
nuous, shall we say, eyeball-type surveillance begin on
the residence you described?
At approximately 3:00 in the afternoon.
Who from Customs was there conducting that surveillance?
No one.
A-11
[344] [345]
Q Was anyone from the State Police there conducting a
surveillance?
A Yes, sir.
[345] Q Was this surveillance in progress a joint effort of
Customs and the State Police — Louisiana State Police?
A Yes, sir, it was.
Q_ Were you in overall charge of it?
A __ I was in charge of the activities of the Customs employees
involved. I had requested the assistance of the State
Police.
Q_ Now, after you made your two drive-by’s, did you leave
the general vicinity of the premises under surveillance?
A Yes, I did.
Q_ Without going into any activities that have no bearing on
this particular case, where did you go and what did you
do?
A I went to the Region Two Narcotics Headquarters of the
Louisiana State Police in Lafayette.
Q_ And did you at the Region Two Headquarters continue
- coordination of the surveillance activities?
A_ Yes, sir, I did.
Q__sDid you remain there all evening?
A-12
[345] [347]
A
Q
A
> OH PF A
No, sir, I did not.
Where did you go from there, and when?
At approximately 10:00 p.m., Sgt. Paul Trahan and
myself went to the -— to a residence in the near vicinity
of the suspect residence.
Was that the residence of State Trooper Hebert?
Yes, sir, it was.
And where is that residence located?
It is south of the suspect residence on Highway 349.
* * *
[347] Q Who was that?
> OH +» HD PP
Larry Lejeune of the Louisiana State Police.
Now, were they reporting to you their movements and
observations during that period?
They were reporting their observations to me, yes, sir.
When did you move from that particular location?
The Hebert residence?
Yes.
After having secured the telephonic search warrant.
A-13
[347] [347]
Q
O F+ NH PS ©
>
OH >» OH F—§ #”
>
©
You were out front in the yard of the Hebert residence.
Did you go into the house to make the phone call?
Yes, sir, I did.
Now, what was the first call that you made with the goal
of obtaining a search warrant?
What was the first... .
To whom, and what time?
To U.S. Magistrate Byron Hebert at his residence.
You made no other calls to any other state or federal
judge or magistrate prior to the one to Judge Hebert?
No, sir, I did not.
Did you make any calls to any United States attorney
prior to calling Judge Hebert?
No, sir, I did not.
Did you tell him what the purpose of your call was?
I requested — yes, sir, I did.
You did; and you told him you were seeking a search
warrant; is that right?
Yes, sir.
And did you then begin to tell him any facts that you
* * *
A-14
[349] [349]
[349] Q When you drove by. Okay. You also state that this
A
Oo >» NH PP
truck is registered to Zerbe & Sons, 113 Claymore
Drive, Lafayette, Louisiana. When did you iearn of that?
The registration on the trailer had been seen at times
previous to the night in question.
By you?
No, sir.
Oh, this is not your own personal knowledge; is that
right?
I beg your pardon?
This statement that the truck was registered to Zerbe &
Sons was not of your own personal knowledge, but
instead was something someone else told you; is that
right?
Yes, the State of Louisiana Motor Vehicle Registration.
Well, apparently Judge Hebert didn’t ask you about that;
is that right — about where you got that information?
No, he didn’t.
And you didn’t tell him where you got it, did you?
No, sir, I did not.
Who specifically gave you that information? What indivi-
dual?
A-15
(349) [350]
A
ce)
Oo +» HD P
I did not ascertain — I did not get the registration check.
Someone else got the registration check.
Well, then let me reconstruct this. Is it correct that you got
that information from someone else who got it from
someone else — namely, at the Motor Vehicle Registra-
tion Department? Is that how it [350] came about?
Yes, sir, that’s correct.
So you don’t know the source at the Motor Vehicle
Registration Department, do you?
Could I explain something about how that’s done?
Yes.
Almost all of this information contained concerning
registrations is now computerized, and our computer
at our central communications network — we call
it Sector — which is located in New Orleans, has direct
data links to states who are computerized; and all our
operator has to do at our request is to enter a number
Okay, but did you call an operator and request the infor-
mation?
No, sir, I did not.
Who was your first source of this information?
A Customs patrol officer.
What’s his name?
A-16
[350] [351]
> OH >» H + NH PS
A
Gary Thompson.
Did you tell that to Judge Hebert?
No, sir, I did not.
Where did Gary Thompson get his information?
1 thought I just explained that.
I want to make sure the Court completely ... .
He requested from our communications people by radio
to provide him with a registration of the....
Is that what you’re assuming, or did you see and hear him
do that?
No, I didn’t see him or hear him do that, no, sir.
[351] Q Now, you state further on in that paragraph that
OH >» H Pe
Mr. Zerbe — spelled Z-e-r-b-y — is an associate of Marvin
Zylstra. How did you know that? First of all — let me
retract the question. Is that true?
Yes, sir, that’s true.
How do you know that?
From intelligence sources.
Well, you didn’t know that of your own personal know-
ledge, did you?
No, sir.
A-17
[351] [352]
Q
> © 2? © 3 ff 2? BD 2?
Q
You had never revealed to Judge Hebert that that was
something outside of your own personal knowledge,
either, had you?
I’m sorry?
You did not tell Judge Hebert when you called him on
the phone that this statement you were making was
not your own personal knowledge, but something
someone else told you; did you?
No, sir, I did not.
Now, who told you that?
It was an intelligence source.
Well, who?
The — it’s rather a what more than a who.
A what?
Rather a what more than who.
What is that source, then?
In this particular case, it’s a weekly brief published by
EPIC — El Paso Intelligence Center.
Who publishes that?
[352] A EPIC — El Paso Intelligence Center — is an inter-
agency-intelligence-network-sharing facility located in
El Paso, Texas.
A-18
[352] [352]
Q
Oo +» HD PP
What agency does it belong to? Customs or the State
Police or the Texas Law Enforcement? What is it?
The agency is under the Justice Department.
United States Government?
Yes, sir.
Now, which warm body — individual ~ if you know, gave
that information to EPIC that, quote, Mr. Zerbe is an
associate of Marvin Zylstra?
I don’t know which warm body did it.
He could have been. as a matter of fact, three or four or
five or six times removed from you, couldn’t he, to
your knowledge?
Well, I know where the information that Mr. Zerbe was an
associate of Mr. Zylstra came from.
It came from EPIC; is that right?
Yes, but I knew — EPIC told me the source of their
information.
What was that?
The attorney general’s — I’m trying to remember how it
was phrased. It was the attorney general’s law enforce-
ment arm of the Columbian government,
You don’t know who this is, do you?
A-19
[352] [353]
A No, I don’t know the attorney general of Columbia, no,
sir.
Q_ Now, is Route 1, Box 674 the residence of Jeffery Dupuis?
A Yes, sir, to my knov'ledge, it is.
[353] Q Well, is Route 1, Box 674 where you were speaking
to Judge Hebert from?
A No, sir.
Q Okay, we'll come back to that. Now, you state that
Jefferey Dupuis is an associate of Marvin Zylstra is
that correct?
Yes, sir.
~
Is that something that you heard Mr. Dupuis or Mr.
Zylstra tell you or someonw else within your hearing?
No, sir.
Well, did someone else tell you that?
Yes, sir,
Who was that that told you that?
The people at the Avis Rent-A-Car dealership.
Who were these people?
> © > © © ODO SY
I don’t know their names.
A-20
[353] [354]
Q_ Well, are you telling us that the Avis Rent — somebody at
Avis Rent-A-Car saw some names? Is that it? What is it?
Who did it come from?
A Mr. Dupuis rented a car for Mr. Zylstra.
Q__ But this is something some Avis people told you; is that
right?
A Yes.
Q But you don’t know which Avis people, their names or
anything?
A No, sir.
Q_ And you didn’t report to Judge Hebert that this was
something someone else told you whose names you
didn’t know; did you?
A No, sir.
Q Now, you state further that this vehicle — there are
approximately three or four vehicles or more mentioned
in this affidavit -- are in this transcription. Which
vehicle were you taling about here?
A __ The vehicle that I was talking about was the trailer portion
of the tractor-trailer combination.
Q You didn’t explain that to Judge Hebert, did you?
It says this vehicle was at the residence approximately
seven weeks — the trailer only.
A-21
[354] [354]
Q
So F* © FF © fF? © *® A ?P
QO +» fH PP
Now, did you watch that vehicle, whatever one you were
talking about there, at the residence for seven weeks?
No, sir, I did not.
So that wasn’t your knowledge, either, was it?
No, sir.
That came from someone else?
Yes, sir.
Who was that someone else?
Gary Thompson.
Did you tell Judge Hebert that?
No, sir, I didn’t.
So Judge Hebert didn’t know that that was information
coming from some other party; is that right?
No, sir.
He didn’t ask, and you didn’t tell him?
That is correct.
Now, you have further in this transcription a statement,
“On Sunday, June 11th, 1978.” We presume
** *
A-22
[356] [356]
[356] Q Did you get that, also, from Mrs. Hebert?
A
Q
A
Q
a FF ff -
Yes, sir.
But you didn’t tell Judge Hebert that?
No, sir.
For the record so that there’s no confusion, is it correct
that Mrs. Hebert and Officer Hebert are in no way
related to Judge Hebert?
I couldn’t tell you for sure. As far as I know, they’re
not related.
In any event, they weren’t functioning as agents for him
at any time along the way? -
As far as I know, they were not.
Now, you didn’t then see these vehicles - the bobtail
trucks you mentioned — did you? Is that right?
Yes, sir.
When they allegedly returned on June 15th.
They didn’t return.
Well, I have a statement here in this transcription that
says the truck left the residence and returned to the
residence with two other Dodge trucks. Did you see
that happen?
The truck left the residence and returned to the residence
the morning of June 15th with two other Dodge three-
and-a-half-ton trucks.
A-23
Le)
> HO ~P
Q
Did you see those two other trucks come into the resi-
dence?
No, I did not.
Then that was from some other source, also?
Yes.
Who was that source?
[357] A Mrs. Hebert.
Q
A
oO Ff © + G&G + © ®*®
And you didn’t tell that to Judge Hebert, did you?
No, sir.
Now, further on in Paragraph Four you state that at
11:15 p.m. on June 15, 1978, air officers et cetera
made certain observations. Who are these air officers?
We’re looking now still at Page One, Paragraph Four.
The air officer was Henry Wade.
You didn’t tell Judge Hebert that, though, did you?
No, sir.
And who was the Louisiana State Police narcotics officer?
Larry Lejeune.
And did you tell that to Judge Hebert?
No, sir.
Now, when you said, “We believe to be marijuana,” you
hadn’t seen these bales, had you?
A-24
[357]
A
ae * ©
Q
[358]
No, sir.
So vou had no direct eyeball information to base that
statement on, did you?
Direct eyeball information?
Did you see these objects, yourself?
No, sir.
Now, you make a statement that the bales were being
offloaded from the large truck. Was that the eighteen-
wheeler?
Yes, sir.
Onto two smaller trucks with Georgia plates. Were they
the two bobtail trucks?
[358] A Yes, skr.
Q
A
Did you personally see that?
No, sir.
And, as a matter of fact, that’s an incorrect statement;
isn’t it?
Yes, it is.
In fact, the loading was being conducted the other way,
wasn’t it?
Yes, it was.
A-25
[358] [359]
Q
A
So that was a false statement; at least, it was an error?
It was an error. That sounds better.
Now, going to Paragraph Five, Officer Joachim, the next
page, you stated that “this truck had received’’. Were
you speaking there of the eighteen-wheeler?
Yes, I was.
ANd you state that this truck had received some time
between June 11th et cetera marijauana contraband
brought in on N 888 et cetera. Is that a true statement?
I don’t know whether it’s true or not.
At the time you gave it, you didn’t know whether it was
true, either; did you?
No, it was an assumption on my part.
It was a strict assumption Was it speculation?
BY THE COURT: Excuse me, what statement was
that?
[359] BY MR. KLEPPNER: Paragraph Five, Your Ho-
nor, at the top of Page
Two.
BY THE COURT: Specifically, what’s the statement?
BY MR. KLEPPNER: “This truck had received some
time between June 11 and June
15th, this year, the marijuana
A-26
[359] [360]
a * © fF © ? #
Q
A
contraband brought in on N 888
RH presumably from Columbia or
South AMerica.”’
Was that a false statement?
That was an assumption.
Was it a wrong assumption?
I don’t know.
Did that happen or not, sir?
I don’t know, Mr. Kleppner.
At the time you gave it, did you know whether it had
happened?
I thought it had, yes.
Why?
Because the November 888 Romeo Hotel belongs to
Marvin Zylstra.
But that was the only basis you had for making that
speculative statement?
And Mr. Dupuis is an associate of Mr. Zylstra’s.
[360] Q And that’sall you....
A
And that on one other occasion Mr. Dupuis had met this
aircraft when it landed at the New Iberia Airport.
A-27
[360] [360]
Qi But, Mr. Joachim, you did not tell Judge Hebert that this
statement had no basis in solid fact to your knowledge,
did you?
A No, I did not.
Q Now, Officer Joachim, further on in Paragraph Five
where the statement appears, quote, “One truck is now
full and will be leaving shortly,’ were you referring to
one of the bobtail trucks?
A Yes, 1am.
Q_ Asa matter of fact, that statement was in error, wasn’t
it?
A Yes, it was.
Q_ That.was an inaccurate statement; is that correct?
A Yes, because the transfer of the substance was from the
small trucks to the large truck.
Q_ And, as a matter of fact, you didn’t personally observe
that, did you?
A No, sir.
Q But you didn’t word it to Judge Hebert to indicate that
it was coming from someone else, did you?
A I stated earlier on in Paragraph Four that air officers and
Louisiana State Police narcotics officers had. .. .
Q_ Weil, aren’t you an air officer?
A-28
[360]
A Yes, lam.
[361]
Q_ Well, then that could have very well meant you, [361]
couldn’t it?
BY MR. McHUGH:
BY THE COURT:
BY MR. KLEPPNER:
Your Honor, I’m_ going to
object to that question. That
leads to a conclusion and beyond
the scope.....
He’s called on to speculate what
it meant to the magistrate.
I'll withdraw the question, Your
Honor.
Officer Joachim, we note further that about half-way
down Page Two a statement, “Is there a U.S. attorney
available?”” Your answer, quote, ‘“‘No U.S. attorney is
available, and no time is available to contract a U:S.
attorney.’ Now, as a matter of fact, Mr. Joachim, had
you made any attempt to contact a U.S. attorney?
A No, sir.
So, as a matter of fact, you did not know that there was
no U.S. attorney available, did you?
When I said that there was no U.S. attorney available, I
meant that there was no U.S. attorney immediately
available where we were.
Yes, sir.
Do you know any U.S. attorneys?
A-29
[362] [362]
[362] Q In this area?
A
Now, when I say I know them, I have talked to them on
the telephone.
You know that there are U.S. attorneys that live and
reside and work in Lafayette, St. Martinville, Hender-
son, Breaux Bridge area generally? New Iberia? Is that
correct?
No. To my knowledge, there is no U.S. attorney in Lafay-
ette.
How about in the general area of Lafayette, Breaux
Bridge, Henderson, Opelousas and New Iberia?
To my knowledge, there are no U.S. attorneys.
Which U.S. attorneys have you contacted in the area by
phone? You indicated you had.
The one is Shreveport.
The one in Shreveport; and you knew there was a U.S.
attorney in Shreveport, didn’t you?
Yes, sir.
But you didn’t attempt to contact that U.S. attorney,
did you?
No, sir.
So the statement that there was none available had not
been verified by any attempt on your part to contact
one, had it? Had it?
A-30
[262] [263]
A
Q
No, sir, I hadn’t attempted to contact him.
Thank you. Now, you didn’t have apparently a copy or
a duplicate copy of a telephonic search warrant form,
did you?
No, sir. I hadn’t planned to get a search warrant.
Now, moving to Page Three of the transcription, you
[363] state at the top of that, “I am at Route 1,
Box 674, Breaux Bridge, Louisiana.” That was an error,
wasn’t it?
Yes, it was.
You weren’t there, were you?
No, sir. I don’t know the address of Mr. Hebert’s house.
I was on the phone and I turned to Paul Trahan and
asked him what the address was, and he obviously
misunderstood me. I meant the address where we were.
Now, proceeding further down this last page of the trans-
cript, you make a statement about the, quote, method
of packaging, unquote. You didn’t personally observe
any method of packaging, did you?
No, sir.
Now, you state further that you had arrested or et cetera,
seized marijuana baled up in burlap or paper sacks
et cetera. You had not seen these sacks to be in burlap
~ the ones that were allegedly under observation —
had you?
No, sir.
A-31
[363] [364]
Q
QO + HD PP
And you weren’t told by anybody that they were in
burlap, either; were you?
I believe Mr. Wade told me they were in bales.
But he didn’t tell you it was in burlap, did he?
I don’t recall.
And Mr. Wade or no one else told you these were seventy-
to-ninety-pound bales, either, did he?
No, sir, not specifically. He just said they were large
bales.
[364] Q Just large bales.
A
Because he and I have had similar experiences. I conjured
up in my mind what it looked like that he was des-
cribing to me, based on my experience.
But he did not tell you that they were burlap or that they
were seventy-to-ninety-pounds weight, did he?
No, sir, I don’t know how he could tell they were seventy
to ninety pounds from where he was.
Now, after you had conducted this telephone conversation
with Judge Hebert, where did you go?
We drove to the — to a parking area behind the Hungry
Hobo Restaurant.
What time did you arrive at the Hungry Hobo?
Let’s see. Probably about 12:15.
A-32
[364] [365]
Q 12:15? Now, referring again to the telephone transcrip-
tion, I note the very last line of the last page indicates
the time is 12:09. How did you determine that time?
A __ | looked at my watch.
Q_ The same watch you looked at in the beginning?
A Yes, sir.
Q_ All right; and you arrived at the Hungry Hobo at 12:15
in the morning?
A That’s an approximate — I wasn’t keeping track of it.
Q You didn’t check your watch when you arrived?
A No, sir.
Q Who met you there?
A Other State Police officers from Region Two Narcotics.
Q Can you tell us who they were, please?
[365] A His.
Q___s—Did you go directly to the residence that had been under
surveillance?
A After we missed the driveway, we turned around and came
back. Pretty much directly to it.
Q_ What time did you arrive there, do you recall?
A-33
[365] [365]
A
~~ - H } © 2?
At approximately 12:25.
12:25?
Yes, sir.
And when you got there, had all the other arresting
officers and participating officers and Customs agents
already arrived?
I’m afraid so.
You were the last two to arrive?
I’m afraid so.
Now, following that....
It’s a little embarrasing. | mean, I was running this thing,
you know.
We recall a conversation we had previously. Officer Joach-
im, following your arrival on the scene at the residence,
I assume you conducted your search or assisted in the
conduct of a search and made arrests; is that correct?
No, sir. All the arrests had already been made.
Everything had already been done when you got there.
And how long did you stay there on the scene?
Until we began to move the vehicles and the arrestees
back to Lafayette.
Were you there during a picture-taking session?
Yes.
A-34
[374] [374]
[374] Region Two did observe large bales of the
substance et cetera, Now, the truth is it was just one
air officer and one State patrol... .
A True,
Q_ And you knew that at the time you said it?
A Yes, sir. This was an error of excitement.
BY MR. CHESTNEY: No further questions on behalf
of these defendants, Your Ho-
nor.
BY MR. ANDREW HALL:
Q Sir, when you went in to sign this document, the exact
time the warrant was executed — 12:25 a.m. C.D.T. —
that’s Central Daylight Time? June 16th, 1978. That’s
your writing, is it not?
A Yes, sir.
Q_ Now, there’s a little number “5” next to that question,
isn’t there?
A Yes, sir, there is.
Q_ Now, that Number Five puts down the person who is
supposed to fill in that form, doesn’t it?
A That is correct.
_Q. Okay. And would you tell the Judge what Number Five
requires?
A-35
[374] [375]
A
Q
mO FF» © PF FF
It says, “To be completed by agent when he executes
warrant in accordance with 41 (c) (2) (F).
All right, let me show you that. Here’s a copy of [375]
the rule, that section of it. Let’s read that.
‘Additional rule for execution. The person who executes
the warrant shall enter the exact time of execution on
the face of the duplicate original warrant.”
Now, you didn’t execute this warrant, did you?
This warrant?
That warrant. You were the last man on the scene.
No, sir, I didn’t have the paper in my hand.
Yet you went ahead and filled it in; correct?
Yes, I did.
And notwithstanding the instruction that you were not
the person who was supposed to fill it in, according
to both the fule and the form; correct?
That’s correct, because I didn’t have this — that’s the
first time I’ve ever executed a telephonic search war-
rant.
BY THE COURT: Mr. Hall, read me “Five” in the
rule again, please.
BY MR. HALL: I'll be glad to hand it up to
Your Honor.
A-36
[375] [380]
BY THE COURT: All right. Let me see the warrant,
please, Mr. Joachim.
A (Witness complies.)
QQ At the end of the conversation that you had with Magis-
trate Hebert, didn’t you tell him that,
* * *
[380] surveillance; is that correct? And the other one
was constant visual contact? Two aspects of the surveil-
lance. That’s true, isn’t it?
A I don’t know that we had ride-by, because — I don't know
that we had that. I couldn’t swear that we had that for
sure.
Q You don’t know. All right, but you certainly laid out a
program to have constant visual surveillance: correct?
A Yes.
Q_ And wasn’t that to be after dark in order to avoid detec-
tion?
A The surveillance began at approximately 3:00 in the
afternoon.
Q Where were the people at 3:00 in the afternoon”
A I don’t have any idea.
Q You don’t know. Well, later on in the day, a Customs
officer working under your direction appeared and
commenced to participate in the surveillance. didn’t
he?
A-37
[380] [381]
A
Q
Who specifically are you referring to?
Well, in your affidavit you say “air officers”, but you only
meant one — Henry Wade - correct?
Yes, that’s correct.
And Henry Wade worked under your direction, did he
not?
Yes, he did.
Now, who directed Mr. Wade as to where he would go in
order to conduct his surveillance?
He was self-directed in that he was allowed to pick the
most advantageous place for him.
[381] Q Anyplace he wanted?
A
Q
Any place that he felt would be most advantageous to him.
And that didn’t matter whether or not that included going
into the property of the defendant, Mr. Dupuis, did it?
Did you restrict him from that?
No, I didn’t restrict him.
Did you consider at all the possibility that he was actually
on one of the defendants’ own private property, in-
vading his right to privacy when he commenced his
visual surveillance?
BY MR. BURKE: Your Honor, I object. He’s testified
he didn’t know where the man was.
A-38
[381] [382]
BY THE COURT: Well, he can ask him about what
directions he gave him; and insofar
as it pertains to that, it would be a
proper question; but that is correct
~ he said he didn’t know where
he was.
Q___s Did you come to learn where he was?
A I didn’t know his exact location until the arrests were
effected.
Q You mean, when he was telling you what he observed,
you made no inquiry as to whether or not he had
[382] the ability to observe, that he was close enough?
A That man’s got eight years of experience. If he was telling
me what he saw, I believed. He’s my partner. I have to
believe him. I have to trust him. If I don’t, I’m in a
lot of trouble.
Q_I see; so even if he makes a mistake, you’ve got to trust
him; correct?
A Weall make mistakes.
Q_ Well, did you come to learn of the fact that he was making
a surveillance — at any time up until the day you’ve
taken the stand today, have you come to learn that
where he positioned himself was actually on Mr. Dupuis’
property?
A_ I don’t know whose property it was that he was on.
Q You don’t know?
No, sir, I don’t.
A-39
[382] [402]
Q So the one fact that is certain is that nobody from your
agency made any effort to determine who was the
owner of the property or get consent to go on the
property; correct?
A That’s correct.
Q__In your affidavit, would you show me anywhere within
this document that you say is an affidavit, I guess,
where you told the magistrate the ability of these
agents to make the observations, where they were
physically located?
A What I said was that the reason I was seeking the search
warrant -~ telephonic search warrant was that the
offloading was taking place this very minute.
* * *
[408] Id rather he not interrupt
the witness.
Q Can you answer the question?
Would you repeat the question, please?
Q_ This information you have in the first paragraph — the
method of packing, the size, the shape. You see that
information?
A Yes, sir.
Q Where did that come from? Now, look at the second
sentence, also, before you answer.
A-40
[408] [414]
A The experience came from my personal knowledge of
Oo >» H F A
,2)
arrests that I’ve made and marijuana that I’ve seized.
All right, and the second sentence.
These bales — would you like me to read it?
No, I want you to —- where did you get that information?
From the people on the scene.
All right. What information did they give you concerning
these bales?
That they were large bales.
What else did they give you?
That they were distinct, that they were — I don’t recall
whether or not Officer Wade told me the exact measure-
ment. I asked him whether they were large or small,
and he said they were large bales.
What other information you had conerning these bales?
BY MR. KLEPPNER: Your Honor, I‘m going
* * *
[414] A And you wanted to know how many people I had...
Q
A
Q
How many arrests....
Incidents or....
Incidents, if you wish.
A-41
[414] [415]
A
Q
Four incidents. Five. I’m sorry.
You’ve had only five incidents throughout your career in
which you made arrests or participated in arrests for
marijuana?
Yes, sir.
Thank you.
(Discussion off the record.)
(Witness exclused.)
VERNON RAY JOHN, JR., HAVING BEEN CALLED AT THE
INSTANCE OF THE DEFENSE, AND HAVING BEEN DULY
SWORN ACCORDING TO LAW, DID SAY:
DIRECT EXAMINATION
BY MR. ALLEN HALL:
A
Q
GlIve the COurt your name and address, please.
Vernon Ray John, Jr.; 34 Central Street, Basseterre,
St. Kitts.
And would you tell the Court, please, your employment?
I’m meteorologist and assistant air traffic control.
What are your duties in the course of your employment?
[415] A Presently in charge of the meteorological staff at
Golden Rock Airport and presently doing an air-traffic
control assistant program.
A-42
[415] [415]
Q
DO FF BO FF OD F&F RD ~
> OH + HOH PP
In that capacity do you control the aircraft coming and
going from that airport?
All aircraft movements.
In the course of your official duties, have you ever noticed
a certain DC-4 aircraft, No. N — for November — 888 RH
- or Romeo Hotel?
Affirmative.
Say it again, please?
That is affirmative.
In what manner did you notice that aircraft?
The aircraft came and landed.
At your airfield?
That’s right.
During the month of June, was that aircraft on your
field at any time?
It was.
When?
The 2nd of June, 1978 until the 25th of June, 1978.
It arrived on June 2 and....
Departed on June 25.
A-43
[415] [419]
Q_._ Was it there continuously?
Always.
How can you state so?
> HO PP
Any official movement off that airport, the aircraft must
notify the control tower estination and whatever
movement that aircraft would like to move, whether
taxiing from its present parking
* * *
[419] BY MR. KLEPPNER:
Q Now, Mr. John, as a matter of fact, the aircraft bearing
the number given to you by Mr. Hall -- was it under
maintenance at the time it was on this field?
It was.
Did you know that of your own personal knowledge?
Yes, I do.
What kind of maintenance?
> 9 4 2
I can’t give you the nature of the maintenance program
that that was —- the mechanic did to the aircraft.
Q__sDid you see it being worked on?
Yes, I did.
Q___— How long a period of time was it being worked on?
A-44
[419] [422]
A
Q
QO ©» HD PS
I'd say probably a period of two weeks, approximately.
How long after it arrived at your airport did the main-
tenance begin on that aircraft?
Probably a week.
About a week? And when did it end?
To my knowledge, I think the aircraft left and the main-
tenance guy was still there at St. Kitts, so the main-
tenance must have been carried out, finished his main-
tenance, and the aircraft left, leaving the mechanic at
St. Kitts.
I see.
BY MR. KLEPPNER: I have no further questions,
Your Honor.
* * *
[422] have parked on the ramp and on the apron?
The most at any one time?
Yes.
I’d say about six or seven.
Now, you say your tower closes at the last flight in —
the last scheduled flight?
That’s right.
A-45
[422] [422]
Q
> OH » HD PP
What is to prevent someonw from flying the aircraft off
that airfield after the tower closes?
There’s no prevention. Only that they violate the local
regulations.
There’s no prevention; correct?
We can’t stop them.
So it’s possible then that this aircraft could have taken
“4 at night and landed and you wouldn’t know about
I think we would know.
You think you would know. ‘‘We’”’ would know?
I would know.
How would you know? You wouldn’t be there; right?
The fire services maintain a twenty-four-hour vigil at the
airport.
The who?
Airport fire services.
That’s the airport fire-prevention — the fire truck and -—
that’s what you're taling about?
Right.
But that’s not you; right?
A-46
j(422] [423] 64
A_ No, but they notify me first thing in the morning.
Q_ That’s what they’re instructed to do?
[423] A That’s right.
Q
A
But you don’t know if they do that for a fact, do you?
It’s not in my place to say so.
So, actually, Mr. John, the only time you have surveillance
by the air-traffic controller on that airfield is from the
first scheduled flight of the day until the last scheduled
flight; is that correct?
My surveillance, yes.
Okay. Thank you.
REDIRECT EXAMINATION
BY MR. ALLEN HALL:
Q
You testified that you would know if the aircraft took
off at night and returned. Let me ask you this, sir.
How far is it from your island to the closest part in the
United States?
About sixteen-hundred miles.
How far is it from your island to Columbia, South Ameri-
ca?
I reckon, almost the same thing.
A-47
[423] [424]
Qs And if an airplane — do you know the approximate speed
of a DC from your aviation knowledge?
A 200 knots.
Q Two-hundred knots; so if an airplane flew in a triangle
from your island to Columbia to the United States —
to the closest point in the United [424] States and
back to your island, what would the approximate total
distance be?
A Quite a bit.
Q_ Could that be done in one night?
A No.
BY MR. ALLEN HALL: No further questions.
RECROSS EXAMINATION
BY MR. McHUGH:
Q__sDid you personally inspect each aircraft that was parked
on the apron of every day....
BY MR. KLEPPNER: Your Honor, I’m_ going to
object. I don’t think there’s any
right of recross, except for
very rare and limited circum-
stances when directed by the
Court.
A-48
[424] [426]
BY MR. ANDREW HALL: _ Even if there were, only
as he directs his cross
to questions brought out
on redirect; and his ques-
tion was only a question
of mileage and airspeed
[426] direct.
BY THE COURT: I would think that’s well-founded,
yes, sir. I'll sustain it.
BY MR. McHUGH: ‘No further questions.
(Witness excused.)
ARLINGTON GUMBS, HAVING BEEN CALLED AT THE
INSTANCE OF THE DEFENSE, AND HAVING BEEN DULY
SWORN ACCOR" ING TO LAW, DID SAY:
DIRECT EXAMINATION
BY MR. ALLEN HALL:
Q Mr. Gumbs, would you please state your name and ad-
dress?
A My name is Arlington Fitzgerald Gumbs. I live at St. Johns
Village, Basseterre, St. Kitts. That’s in the West Indies.
Q_ Mr. Gumbs, would you tell us what is your employment?
A-49
[426] [427]
A
Q
I’m a Customs officer working with the government of
St. Kitts.
In the course of your employment, are you ever stationed
at the airport at St. Kitts? I believe It’s known as the
Golden Rock Airport.
[427] A Yes, sir. I was stationed there between the 26th of
Q
Do FF © 2? © FF? & ?P
May and the 15th of July.
I see; and are you in charge of those of the Customs at
the airport?
While I was stationed there, I was in charge of all the
Customs and excise.
All right. In the course of your official duties, did you
learn of an aircraft known as a DC-4 aircraft known as
N 888 RH?
Yes, sir.
Tell me when was the first time you saw that aircraft?
I first saw the aircraft on the 2nd of June.
At approximately what hour?
It came in some minutes after 3:00.
And how long did the aircraft stay?
It stayed there until the 25th of June, sir.
At what time did it leave?
A-50
[427] [428]
A
ee ey eS ee Se
A
It left approximately 11:35.
During the course of that span of time between June 2
and June 25, did the aircraft ever depart your airport?
No, sir.
Were the chocks ever moved?
No, not to my knowledge, sir.
How far do you live from the airport?
If you track it in the street, I live about half a mile.
And if those engines were ever revved up, would you hear
it?
Yes, sir.
[428] Q Pretty well all over the island?
A
Q
Up to where I’m living and a bit further, yes, you would.
And is there surveillance of that aircraft at all times?
Yes, sir, there is always some kind of security on the
airport.
Your testimony is that airplane has been there continuous-
ly from June 2 through June 25?
Yes, sir.
A-51
[428] [432]
Q Was any maintenance performed on that aircraft during
that period of time?
Yes, sir, it was done by an engineer by the name of Kahn.
And was it your information that aircraft was airworthy
while it was at your field? Or not?
BY MR. McHUGH: I object to this hearsay, Your Ho-
nor.
BY THE COURT: What was the question?
BY MR. ALLEN HALL: I said, “Was it your informa-
tion or of your own know-
ledge was the aircraft air-
worthy while it was at your
field?”
BY MR. McHUGH: Your Honor, he hasn’t been quali-
fied as an
** *
[432] A That’s right, I was in New Orleans.
> HO -
Did you remain in New Orleans all day?
I remained there until about 4:00 in the afternoon.
After that time, where did you go?
I was told by my supervisor to go to Lafayette to assist
in a marijuana surveillance.
A-52
[432] [432]
Q
Did you do this?
Yes, I did.
You left New Orleans at approximately what time, do you
recall, sir?
I’d say around 4:00.
How did you — did you drive or did you fly?
I drove.
Approximately how long did it take you?
I'd say about three hours.
So this would have given you an arrival time of about
7:00 p.m.?
That’s right.
When you arrived in Lafayette, where did you go?
I went to the State Police Barracks.
Where is this located, sir?
Lafayette.
Upon arriving at the State Police Barracks, what did you
do then?
I was briefed on what we were going to as to surveillance,
and I was told that we were going to keep some trucks
A-53
[432] [437]
Oo Ff © 2? .@2 ? ff °?
>
©
surveillance until they went and picked up — if they
went to pick up a load of marijuana; and we set up a
game plan as to where we were going to be in position
for that
[437] supervisor called you and assigned you to this
case; is that correct?
That’s right.
What’s the name of your supervisor?
Schoellmann.
Sholarman (question as to spelling)?
Right.
And what is his first name?
Gary.
Mr. Schoellmann assigned you to participate in a mari-
juana surveillance; correct?
Correct.
What did he tell you at the time?
That there were some trucks that they believed were going
to go pick up a load of marijuana and that they wanted
to put under surveillance.
A-54
[437] [438]
Q_iODid he tell you that he belived trucks were going to pick
Q
A
up a load of marijuana, or did he tell you as stated in
Paragraph Five of Agent Joachim’s affidavit that a truck
already on the premises was believed to had already
picked up marijuana? Which did he tell you?
I believe he told me to goand....
Pardon?
Let me finish. To go and assist in surveillance of the
trucks that were going to pick up a load of marijuana.
So you believed there would be marijuana there that
night?
No, I didn’t.
[438] Q You didn’t?
A
Q
2
You mean, did I believe there was marijuana in the trucks?
No, sir, that’s not what I said. I said, you believed that
there was going to be marijuana there sometime that
night?
That night or the next day.
And that’s why you were going --- just to wait until you
saw the marijuana — correct?
Incorrect.
Well, why were you there?
A-55
[438] [438]
A
Q
©
DH > BO © HOH F&F ODO PF A
To follow the trucks to where they went to see if they
picked up a load of marijuana.
Then you were actually going to follow the trucks?
Absolutely.
So I take it that when you came over to Lafayette you
met with whom?
State Police.
Well, who?
Okay. Trooper Lamaire, Lejeune, Sgt. Trahan and Officer
Joachim and two other Customs people.
Who are the two other Customs people?
You want their names?
Yes.
Okay. Gary Thompson and James Eubanks.
Now, Richard Joachim wasn’t there at the time?
He was there.
Okay, so there would be three other Customs people.
That’s right.
Now, as far as you were concerned, who was in charge?
A-56
[439] [439]
[439] A _ Well, I'd say Joachim was in charge with Customs
Q
QO +» © F+ H PS
and Sgt. Trahan for State Police.
Now, you didn’t go on to the scene of the surveillance
without being briefed more particularly, did you?
Idon’t....
You don’t recall whether you were briefed?
As far as what?
Well, were you told where you were going?
I was told where I was going.
Were you told what it looked like -- what the property
looked like?
Well, we drove by it.
You drove by it. Were the property lines pointed out
to you?
Property lines pointed out?
Certainly you’re not going to go on somebody’s property
without their consent, would you?
We went on the property across the street from the resi-
dence.
I see. Now, did anybody that was participating in this
carefully say, “Don’t go on Mr. Dupuis’ property’”?
No, sir.
A-57
[439] [440]
Q
~© OD F*+ © * BD ©
> © Ff? BD PP. 2
Were you told it was Mr. Dupuis’ property?
No, sir.
Did you care?
Yes, sir.
Did you ask?
No, sir.
You must not have cared that much.
BY MR. BURKE: Objection. Now he’s arguing with
the witness, Your Honor.
BY THE COURT: Objection sustained.
Now, was there a surveillance plane before you actually
started surveillance?
There was one there.
There was one what?
An airplane there.
An airplane there? Going over the property?
I don’t know about that.
Where was the airplane, and what was it doing?
SItting at Lafayette Airport, as far as I know.
A-58
[440] [441]
ODO >» AH Pe
For what purpose?
Surveillance.
Of this particular property?
No, sir, of the trucks when they were in motion.
When the trucks were in the motion. Okay. So that as
far as everybody was concerned, if the trucks left the
property, there would be no problem in following them;
is that correct?
Well, that’s incorrect. There’s always a problem following
somebody.
That’s why the airplane was there?
Correct.
Okay. Now, you planned, if necessary, to use an airplane
in surveillance. What about the rest of the surveillance?
Was there any organized pro- [341] gram of who
would participate, where they would be, and what they
would do?
I’d say there was.
There was? What was it?
They were set at certain points on the roads to observe
the trucks as they went by.
Who is “they”?
State Police, Customs.
A-59
[441] [441]
OH + NH PSP
Oo + HO PP
State Police and Customs were set all along the roadway
to observe these trucks as they went by?
Right.
And what time were these roadway observations set up?
I'd say about 7:30 or 8:00.
In the evening?
Right.
Now, let’s start with the area surrounding the house.
There were policemen in the area surrounding the
house, weren’t there, other than you?
Surrounding the house?
Let’s say there are two roads.
Right.
And this house is on this particular piece of land on the
corner of the intersection of two roads?
Okay.
COrrect? Do you remember that?
(Witness indicates yes.)
Now, were there policemen stationed on either of those
two roads?
A-60
[441] [442]
A
I know of one for sure. The other, I can’t say. I don’t
know.
[442] Q Well, which one for sure?
A
> OH F- A
The one in front of the house.
The one that leads to the INterstate — the main road, 349?
The one, right, I believe went to the Interstate.
Well, where were the police on this main road?
I think they were about a mile down the road on the
same road the house was on - that Route | or whatever.
Okay. A mile down the road. And how many cars were
there?
One.
And beyond that, there were numbers of other police
vehicles stationed periodically?
I'd say they were in the area.
In all directions, so they could go wherever they wanted
so the trucks would always be under surveillance;
correct?
That’s right.
And how many cars do you figure were involved in that?
I'd say four, maybe five.
A-61
[442] [443]
Q
A
Q
Now, in addition to surveillance of the vehicles in move-
ment, if they ever got into movement — by the way,
these trucks never moved out onto the road, did they?
No, they didn’t.
In addition, were there any other law enforcement offi-
cials observing the scene?
No, none.
Just you?
[443] A Myself and Trooper Jejeune.
Q
A
Now, what was the plan for you and Trooper Lejeune?
We were to sit there; and as soon as we saw the trucks
start up and leave, to give notice to the surveillance
team.
All right; so your function was to sit there and wait until
the trucks moved out onto the highway and then to
give notice; correct?
Well, to give notice as they were starting to leave.
As they were starting to leave?
Correct, and give directions as to which way they were
going.
At which point, the surveillance would commence?
Right.
A-62
[443] [444]
Q
> © FF A
Q
A
Now, were there aircraft flying over the property *> part
of the surveillance?
Not at that time, there wasn’t.
Later?
There was one in the air, and I told them not to come
over the property.
Did he come over the property?
I don’t believe so.
Do you know, or are you guessing?
Well, he didn’t go over the property, no. He returned to
the airport.
Was he in the area so that he could see the property from
the air?
No, he couldn’t see the property at night time.
Now, you came onto the property at what hour?
You mean, the cane fields?
[444] Q I mean, property. What hour?
A
Q
A
Which property?
Let me show you something. Can you identify this photo-
graph for me?
Okay.
A-63
[444] [445]
A
Q
BY MR. BURKE: Your Honor, if the witness is
going to testify from a photograph,
I want it to be marked and we
might look at it.
BY MR. HALL: Sure, go ahead. Be my guest. I
believe that’s ‘‘D-5”’.
(Discussion off the record.)
Here’s a red pen. Now, let’s start. You came onto the
scene at approximately 8:30; right?
That’s right.
Okay. How did you get onto the property? From the
road?
Right, from the road.
Good. Now, at the point you entered this particular
property, cane field or whatever, would you please
put a Number “‘1” on the photograph?
Where I entered the cane field?
Where you entered.
[455] A It’s not on the photograph.
Q
A
It’s not?
No, sir.
A-64
[445] [445]
Q
DD 2. © 3} ®. ?
I'll try another photograph. Is it on the photograph
(indicating)?
Let’s see here.
Is it on that photograph (indicating)?
Okay, it’s on this one.
You find a photograph that you can enter the place?
That’s what I said. Down here (indicating).
Fine. Let’s mark this as the next exhibit.
BY MR.HALL: Your Honor, this will be ‘D-6”.
Okay. Show us where you entered the property.
Okay.
By the number “‘1”’.
(Witness complies.)
All right. Now, did you remain at Point Number One?
No, I didn’t.
You moved. You moved directly into the position to make
surveillance; did you not?
Right.
A-65
[445] [446]
Q All right. Now, would you take an arrow and draw an
arrow from Number One to where you set up your
surveillance post, and write the number “2” at that
location. Just show me how you walked.
A (Witness complies.) Okay. Now, what did you want here
again?
[446] Q Where you set up your surveillance, write the num-
ber “2”’.
A Okay. (Witness complies.)
Q_ Thank you.
(Discussion off the record.)
Q Now, you and the State Trooper were together at all times,
were you not?
A That’s correct.
Q_ Now, tell the Court what type of equipment you had on
your person at this time.
A Okay. I had a pair of military night-scene goggles and
Trooper Lejeune had a pair of civilian-made — It’s
called a Starlite scope to see at night time, and he had
a pair of binoculars.
Q_ Allright, sir. That’s all the equipment you had?
A And one Customs radio.
Q He did not have a radio?
A-66
[446] [447]
A
Q
(e)
> OH >— OH © HOH F&F H PY
No, sir.
So the only communication that you could have had with
any other law enforcement officers came from contact
you had on that radio with any other Customs officers
in the area; correct?
That’s right.
And that’s because Customs uses a separate frequency than
generally used by law enforcement officers in the
community?
That’s right.
Now, when you got to the position where you started
[447] the surveillance -— by the way, how tall was
the sugar cane at that time?
I'd say waist-high.
And did you walk in a fully-erect position?
Yes, sir.
All the way through?
All the way.
You made no attempt to conceal yourself?
No, sir.
And you are certain about that?
Yes, sir.
A-67
[447] [447]
> BO 2 >
Oo >— DH &— H F&F H KF A
What about the follow who was with you? Him, too?
That’s right.
Now, you got into the position of ‘‘2’’, and what did you
do?
Sat down and waited.
Sat down and waited. Well, was it dark?
Very dark.
Did you look at the house?
We looked at the house, looked at the trucks, looked at
the cane fields.
Looked all around?
Looked all around.
Did you do that with your naked eye?
Couldn’t see much with the naked eye.
I’m sorry, sir?
I couldn’t see much with the naked eye.
Well, what did you use to help you see?
Starlite scope, night goggles.
Now, you wear glasses, don’t you?
A-68
[448] [448]
[448] A That’s right.
Q
> O FF DH F& A > O + HD PP
(e)
What’s the problem with your eyes? Do you wear glasses
just for cosmetic reasons, to look better? Or do you
have a problem with your eyes?
I’d say I can’t see distance without my glasses.
You can’t see far away?
Right.
Now, the night vision scope that you had of the military —
describe how that fits. How do you use it?
You can hold it up to your face or you can have straps
sO you can wear it on your head, say, if you want to
drive a car.
Did you have straps?
I didn’t wear it. I just held it up and looked through it.
Held it up and looked through it how?
Same as a pair of binoculars.
There’s no magnification, is there?
No, but you hold it up the same as you hold up a pair of
binoclulars.
And all that’s supposed to do is allow you to see as if it
were a brighter condition; correct?
A-69
[448] [451]
A _ It allows you to see what you can’t see in the dark.
QI think that’s what I’m saying. Now, did you lift your
glasses off as you looked into these night binoculars
that you had?
A No, I didn’t.
Q What did you do? You put the eye pieces against the
* * *
[451] A That’s right.
Q___ And you looked at the trucks?
That’s right.
A
Q_ And they were right near the house?
A
Well, they were on the road in back of the house and on
the road on the side of the house.
You mean, the driveway?
No, I mean road.
It’s a road?
Yes, sir, that’s a road.
Parish road?
> © FP BO fF Bf
I don’t know what kind of road it is, but that’s a road.
A-70
[451] [452]
Q You mean, this little white thing here (indicating)?
A (Witness indicates yes.)
©
We're talking about the same thing. Okay. When you first
started observing, what did you see?
i saw a house, trres, three trucks.
Did you see people there?
I saw people moving about in the back yard.
Moving about? Weren't they just having a barbecue?
Moving about.
Sir, where they having a barbecue? ‘Yes’ or ‘‘No’”?
Yes, they were.
Oo f- © Ff #8 - 8?
Your statement was when they’re having barbecues they’re
moving about?
>
Well, they’d walk back to the truck, walk back to the
house.
Q_ And they were having a good time; they were enjoying
themselves?
[452] A_ I don’t know if they were enjoying themselves or
not.
Q Were you observing people that appeared to be enjoying
themselves?
A-7]
[452] [452]
A I couldn't tell about that.
By the way, were they eating?
I couldn’t see them eating.
Then how did you know they were barbecuing?
Smell it, watch the smoke coming up in the backyard.
Okay. Did you hear conversation?
No, I didn’t.
Did you hear laughter?
I don’t remember.
Did you hear music?
I hear music.
OH >» OH &— HOH F&- H F&F H FF A
And people were moving about around the house and
occasionally out to the trucks?
Right.
And how long did that continue, please?
I would say until about 11:30.
Well, was it 11:30, or was it about 11:30?
> OH FF AD SP
I’d say about 11:30.
A-72
[452] [453]
Q
Oo + NH P
And you were in radio contact with Richard Joachim,
weren’t you?
Off an on,
What happened at 11:30?
The back light of the house went out — the back light to
the house like a back-porch light or a light to shine
on the backyard.
Stop right there. The back-porch light went out. Do
[453] you know whether or not there was a woman
and children living in that house?
No, I don’t.
So you wouldn’t know whether or not they were tired
for the night and turned that light off so they could
sleep, would you?
No, I don’t.
Okay. All you know is the back-porch light went off?
Right.
Okay. After the back-porch light went off, what happened
next?
Can I back up a minute?
Sure.
Thank you. A vehicle showed up.
A-73
[453] [458]
QA vehicle?
A Right — car — passenger car showed up about at that time,
11:30; and that’s when the light went out.
Q At the same time the vehicle came?
A _ Right after the vehicle.
Q__s— Did you see somebody get out of the car?
A No, I didn’t.
Q So all you know is that there was some proximity in time
from the time the automobile arrived at the home and
the back porch light went out?
A Well, somebody arrived in the car and walked to the back
of the yard.
Q__sI asked you if you saw anybody in the car, and you said,
“No;” and now your’re saying somebody walked from
the car to the house. Now, which
* * *
[458] A No.
Q_ No? So you did see them turn it off?
A No, I didn’t. Somebody had to turn it off.
Q___ These units never have a mechanical failure and go off by
themselves?
A _ It’s possible.
A-74
[458] [458]
Q
QOH >» © >» DH F& DO P
>
(2)
Certainly. Anyway, for whatever reason, the unit went
off; correct?
That’s right.
Then what happened?
They started the eighteen-wheeler up.
Who is they?
Whoever was there.
How many people?
I didn’t see how many were there at the time.
Which persons? Any of these men here start that trailer
up?
I didn’t see them.
You didn’t see none of them. It was a person other than
these seven people; correct?
Pardon me?
A person other than one of these seven men started that
trailer up; right?
I wouldn’t say it was other than those seven men. I’d say
one of them did.
But you don’t know which one?
No, I don’t.
A-75
[458] [459]
Q
A
So, therefore, it might have been somebody else, too,
entirely ; correct?
It’s possible.
[459] Q Okay. Let me go back to the refrigeration unit
QO >» OH F—- H © HD PS
>
turning on and off. You live in New Orleans, don’t you?
Yes, I do.
Does your home have an air-conditioner in it?
Yes.
Central air-conditioner?
Right.
And it has a thermostat in the house; right?
Correct.
You know, and when the termperature goes to a certain
point, it goes on automatically; and when it drops
below a certain point, it goes off automatically; correct?
Correct.
Did you check and see whether or not this truck had a
thermostat?
I didn’t go near it.
So, if it had a thermostat, certainly that’s the best explana-
tion for why the refrigeration unit went off?
A-76
[459] [460]
A
Q
A
Q
No, I disagree there.
You disagree, but you didn’t see a thing. All right, let's
go on. Now, you saw a person who you cannot identify.
Can you describe him?
No, I can’t.
Anyway, this mysterious person turned the eighteen-
wheeler on; correct?
That’s correct.
And what did this mysterious person do at that time?
[46] A Started to move it.
Q
Oo » OH + NH P
Where?
Well, at the time the truck started up,I called the. ...
Sir, the question is, where did he move it to?
To back it up.
And you were on the radio with Agent Joachim; correct?
That’s right.
Sir, would you please indicate the spot that you were
sitting at in this sugarcane field at the time that the
eighteen-wheeler was turned on? I’m referring to “De-
fendants’ Exhibit Seven’’. Put a little ‘*X”’.
Let me see here.
A-77
~_—
—
[460] [462]
Q
Oo - LO 2?
Take your time.
I will.
You’ve marked the “‘X”’; correct?
That’s correct.
Now, on that same photograph please indicate as best
you can the eighteen-wheeler and where it was. Why
don’t you draw it.
BY MR. KLEPPNER: Your Honor, I have a legal pad,
if that’s all right.
No, I don’t need anything.
You don’t need anything?
No. I know where it was parked, but not how it was
parked.
[462] The word “truck” is written over a large area. Was it
on the inside of that little driveway, on the outside,
on the driveway? Where was it?
BY THE COURT: I would suggest, Mr. Hall, that if
you're going to get the kind of
answer you want, use the termi-
nology he uses. He doesn’t call
that a driveway.
Driveway right here.
A-78
[462] : [463]
Where was the eighteen-wheeler in relation to — what do
you call that? A road?
Road.
Okay, where was it?
Right here. Before or after it backed up?
Before it backed up.
Right about here (indicating).
About here, referring to the inside — the residential side
of the roadway; correct?
I'd say so.
Okay. Ane one bobtail was directly on the roadway and
the other bobtail was on the grassy portion of the field
in which the trailer-house is located; correct?
I'd say so.
No, sir, I’m going to hand you ‘Defendants’ Exhibit
Eight”. Now show me how the trucks were located
[463] after the eighteen-wheeler was backed up by
the mysterious person.
You just want the one truck or all three of them?
All three, if you would.
After the eighteen-wheeler was moved (indicating).
A-79
[463] [464]
Q Okay, so the large rectangle indicates the eighteen-wheeler
Oo + HD -
A
that is positioned next to the photograph of the boat
in the picture; correct? Why don’t you put an “18”.
Mr. McHugh has got a good idea there.
(Witness complies.)
Okay, and the other two rectangles are still the bobtail
trucks; correct?
That’s correct.
Okay.
BY THE COURT: The two bobtails are in the same
position as you marked before
in the other photograph?
At this time, right.
Now, in comparing the two pictures, actually the eighteen-
wheeler was only moved onto that road?
I would say so.
Correct?
That’s correct.
So it was moved a foot or two or three; no significant
movement?
It wasn’t a far distance, no.
[464] Q You can’t estimate how far it was, can you?
A-80
[464] [464]
A
Q
No, I couldn’t.
Okay. The eighteen-wheeler was moved and then brought
to rest; correct?
Right.
Did the mysterious person turn the eighteen-wheeler off
at that point?
Yes, he did. I believe he did. I think he shut it off. I don’t
remember if he turned it off or not, but I think they
shut the motor off.
You don’t remember, so it could have been running or
it might not have been running; you don't know;
correct?
I'll have to think. Just give me a chance. Okay. They shut
it off. They did shut the motor off.
Now, what in your mind refreshed your recollection as
to whether they shut it off?
Because we could hear the door slam to the truck, could
hear the back door open on the -— the tailgate on the
truck.
Now, at the time that the truck was turned off — and
again, did the mysterious person get out of the truck?
I didn’t see anybody get out of the truck.
So he may have still been in the truck?
Could have been.
A-81
[464] [465]
Q_ And you don’t know who or where or what happened to
this person from that point on that night? Correct?
- [465] BY MR.GUIDRY: Your Honor, I’m going to
object. He said he didn’t
know who got out the
truck, so how is he going
to answer that question?
BY THE COURT: Well, that’s a different question.
BY MR. GUIDRY: Yes, sir, but it’s impossible for the
witness to answer.
BY MR. HALL: Your Honor, I don’t mind being
ganged up on a whole bunch of
times, but I think I’ve had objec-
tions and comments from all three
of these assistant District Attorneys
now. Can I just deal with one of
them?
BY THE COURT: Well, I think they’ve had the same
problem. At any rate, the objection
is overruled.
Q_ Now, did you happen to at any time later on in the even-
ing observe that the doors of those trucks [466] were
trimmed with rubber?
A No, I wasn’t looking for that.
Q_ So you don’t know whether or not doors trimmed with
rubber slam — make slamming noises?
A-82
[466] [466]
A
I don’t care what it’s trimmed with, it’s going to make a
slamming noise, no matter what.
If you say so. And at that point, sir, what did you observe?
After they backed the truck up?
I think that’s where we are, the first truck that you put
on the so-called road.
All right. That’s when approximately six or seven people
showed up around the trucks and somebody went to
one of the bobtail trucks and started it up, and then
somebody backed — started backing the truck towards
the eighteen-wheeler.
Let me see if I can get this straight. Six or seven men
appeared, and you don’t know how many; correct?
No, sir.
Now, you were looking through that night scope, were
you?
(Witness indicates yes.)
Which one of these men, if any of them, went to the
bobtail truck?
I can’t identify any right now.
You can’t identify anybody. All right. But somebody -
another mysterious person, perhaps -- went to the
bobtail truck and backed it up; correct?
Correct.
A-83
[470] [470]
[470] A I don’t think so, not the way they were climbing in
Q
the back of the trucks.
So you conclude that they were eighteen inches, because
you saw men making entry and exit into the trucks?
Right, from the side of the back of the truck instead of
going actually into the back.
From the side of the back. Now, therefore, all you know
is that a man can get his body into the truck, and
whatever width would permit that is the width that
was there then; correct?
That’s correct.
And that is the fact that you know. Now, so that we’re
clear at this point, you couldn’t see into either truck,
could you?
You’ve forgotten they opened up the door of the truck,
though, prior to backing up.
Sir, | asked you what happened, and you told me that the
trucks moved together; you didn’t tell me about an
opening door; but if You.d like to, tell me now. That’s
fine.
Okay, I will. The door of the eighteen-wheeler opened up
and we observed bales of marijuana inside it, and that’s
when the — for about, I’d say, a minute, not even a
minute, and that’s when the bobtail backed up to it
ee
No, let’s deal with fact, shall we, sir?
A-84
[470] [471]
A
Q
Le)
ao Ff EO FF © Pf
> OH FF» H P
Go ahead.
Facts as they existed when you looked. Now, sir, look
at those two doors right in the back of the court-
[471] room. Tell me what’s behind them right now,
right now.
Behind the two doors ....
No, tell me what’s behind them. Look through those
doors. Tell me what is behind them.
Hallway.
And who is in the hallway?
I haven’t the slightest idea.
Why not?
I can’t see through the doors.
Correct. Now, let’s talk about the bales. Could you see
through these bales? Were these x-ray scopes of some
type?
No, sir.
So all you saw were bales.
No, sir, | saw bales of marijuana.
Sir, did you see inside the bales? ‘“‘Yes’”’ or “‘No”’.
No, I didn’t.
A-85
[471] [472]
Oo Ff #8 P
A
Did you smell an odor of anything? ‘‘Yes’’ or ‘“‘No’’,
No, sir.
Did you see marijuana gleanings around the premises?
“Yes” or ““No”’.
No, sir.
All you physicall saw were bales; correct?
No, sir, I saw bales of marijuana.
You conclude there was marijuana in it; you did not see
marijuana with your own eyes; is that correct?
(No response.)
Sir, is that correct?
Did I see bales? Did I see marijuana with my own eyes?
[472] Q Yes, sir, your own eyes - those which God gave you.
A
Oo +» HQ YF, A
I saw bales of marijuana.
Tell me what’s in my briefcase, sir.
I can’t see through it.
But you can see through bales?
No, sir.
Then you could not see through these bales?
A-86
[472] [473]
A
Q
(oe)
a + 82 ? © * & 2?
No, sir, I could not.
But you can say in your heart that you knew through
some divine power marijuana was inside these bales,
notwithstanding the fact you couldn’t see into them;
is that it?
Marijuana bales are very distinctive.
Well, okay, good. Let’s talk about that. In your lifetime,
sir, have you ever been a smuggler of marijuana?
No, sir, | have not.
So your only experience comes in the few incidents in
which you have seen them in your official responsibi-
lity; is that correct? ‘‘Yes” or ‘“‘No”’.
That’s not correct.
You’ve seen them socially?
No, sir. Training.
And how many times have you seen bales of marijuana?
How many times have I seen bales of marijuana?
Sure.
I can’t count how many ties, but I'd say at least twenty.
At least twenty. Now, how many arrests have you been
involved in where you’ve seen bales of marijuana?
A-87
[473] [473]
A
Q
Oo + HD PP
Oo +» H PS
I can remember about seven.
Seven. Now, did you experience these after the arrests
were made or before?
Prior.
Prior. In these instances, did you smell the odor or mari-
juana?
No, sir.
Never. Or did you see gleanings of marijuana?
No, sir.
All you saw were bales; and after the arrests were made,
you learned marijuana was in them?
I knew marijuana was in it before I saw it — saw inside
it.
Now, Mr. Wade....
BY THE COURT: Let me get one thing straight.
Was your answer, “I knew mari-
juana was in it before I saw inside’’?
That’s correct.
Describe for me the bales.
I'd say thet’re about three foot... .
No, sir. Not “‘about’’. Describe for me exactly.
A-88
[473] [474]
oo -F @G- Ff FB YY. ©@
> DO 2» ks 2
BY Mr. McHUGH: Your Honor, I’m going to object.
He’s trying his best to answer the
question.
[474] BY THE COURT: You can ask him for his
best description.
BY MR. HALL: Let me start this way:
Can you describe the bales exactly? Are you able to do
that?
No, sir.
All right, then, give me your best description.
I can give you my best?
Yes.
I’d say about three foot, eighteen by twenty-four, squared
off.
Let’s go slow. Three foot in one direction. The bales are
about three foot high?
Three foot hig; laid down, three foot long.
Okay. Eighteen inches wide; correct?
Right.
Twenty-four inches across; correct?
That’s correct.
A-89
[474] [475]
Q
QO >» OH + HD
A
Now, sir, and they’re squared off. What do you mean by
that?
It’s oblong instead of rounded; corners.
The corners are square?
Right, the corners are square instead of rounded.
Rounded like that (indicating); big curves.
Right.
Are they as square as the angles on this photograph?
Are they true ninety-degree angles?
It’d be rounded.
[475] Q_ They’re more rounded than that. All right. Are
they gently-squared, is that is, sort of a rounded edge,
but basically swuared off?
They’d be squared off, but not to a point.
Not to a point; and when you say rounded edges, you’re
talking about where there’s no apparent squaring at
all, just a round-shaped type of point?
In other words, you look at it and you’ll see four corners.
Four corners. All right. Now, the night in question when
you saw these bales, you saw objects that looked to
you to be bales that were three feet by approximately
twenty-four inches by eighteen inches; is that right?
That’s correct.
A-90
[475] [476]
Q Now, how were you able to make an instant determination
of the measurements of the bales? How many yards
away were you?
About thirty-five yards.
Thirty-five yards, so that’s about longer than the entire
length of this courtroom, isn’t it?
I don’t think so.
Well, tell me — step it off.
Thirty-five yards?
Show me the distance from your seat to where you were
at the time.
I can’t do that.
Why?
I didn’t measure it at the time.
[476] Q Well, from you visual perception here in the court-
A
toom -— you say you had good vision. Show us how far
away that it looked approximately the same. Step it
off. Come on.
Okay. Stepping it off - well, it wouldn’t do any good,
because I didn’t count....
BY THE COURT: We'll just go in a straight line from
where you are to whatever... .
A-91
[476] [477]
Q
> OH >» AH S$
I’ll go back. Tell me when to stop.
That’s fine right there.
Right here?
You can step up a little bit.
Okay.
Step forward a little bit. That’s good. That’s fine.
BY MR. KLEPPNER: Your Honor, before anything
further happens, I’d like to pace
that off myself, just for my own
knowledge.
BY MR. ANDREW HALL: All right. Would you let the
record reflect that the dis-
tance is the distance from
the witness chair to the
fourth bench from the rear
of the room. [477] We'll
offer to measure it later.
BY THE COURT: The back of the fourth bench?
BY MR. VIDRINE: The fourth bench from the rear
of the courtroom.
BY THE COURT: The back of the bench?
BY MR. VIDRINE: Yes, sir.
BY THE COURT: Okay, at a point in the middle of
the aisle.
A-92
[477] [478]
OH >» H © H PP
BY MR. ANDREW HALL: Yes, sir.
Now, at that point you observed these bales in the back
of the truck. Which truck?
The eighteen-wheeler.
All right. And that was some time around 11:30, 11:40,
11:50? What time was it?
I'd say about 11:30, 11:40.
Somewhere in there?
In there.
Could you observe the covering of the particular bales?
No, I couldn’t.
You could not?
[478] BY THECOURT: That was the covering?
BY MR. HALL: Yes, and he said he could not.
Then you were with Officer who at the time?
Lejeune.
Lejeune, and you and he were talking about what you
observed; correct?
That’s correct.
A-93
VOL. Il ‘_— as
IN THE tl JUN 26 tee
WICHAEL RODAK, JR,
Supreme Court of the United States
OCTOBER TERM, 1979
Nn. §=6§%9-2045
JEFF H. DUPUIS, BERNIS H. DAVISON
JOHN ZERBE and WILBUR L. SMITH
Petitioners
VERSUS
STATE OF LOUISIANA
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF LOUISIANA
GRISBAUM & KLEPPNER
FERDINAND J. KLEPPNER
Professional Building
3224 North Turnbull Drive
Metairie, Louisiana 70002
ATTORNEYS FOR PETITIONERS
LL, “EISSN EN ad a ET EES
[478] [479]
Q
OH +» OH © H PP
And your conversation with him confirmed the fact that
you both saw bales of the size you just indicated, but
you could not see the covering; correct?
I don’t think we discussed the covering.
You didn’t discuss the covering at all; correct?
Correct.
Did you discuss the weight of these bales?
No, sir.
As a mattc. of fact, you couldn’t tell the weight, could
you?
No, sir.
Now, to be sure through these devised that you had on
your head — or you couldn’t see color at all, could you?
No, sir.
So all you could tell was that there were bales of this
size, three foot by eighteen inches by twenty-four
with gently squared-off corners; correct?
That’s right.
[479] BY MR.HALL: Your Honor, can we take a
recess? We'd like to show
him — have we got any bales
in yet?
A-94
[479}
BY MR. McHUGH:
BY MR. GUIDRY:
[480]
No.
They haven’t left yet.
BY MR. HALL: They haven’t left yet?
BY MR. GUIDRY:
BY THE COURT:
BY MR. GUIDRY:
That’s correct. Your Honor, I
contacted the crime lab and they
said they don’t have anyone to
bring them here at this time. They
were supposed to get in touch with
me about this time to let me know
what their intentions were.
What do you mean, “Their inten-
tions’”?
Well, whether they were to find
somebody to bring it or whether
we were going to have to send
someone to pick up the bales.
[480] (Discussion off the record.)
You recognize this (indicating) as the truck, don’t you?
Yes, sir, I do.
BY MR. McHUGH:
Can we have it marked?
BY MR. HALL: Sure. Mark this.
Yes, sir, that’s them.
This is the truck and these are the bales that you saw that
night?
A-95
[480] [481]
Q
Oo + HD P-
> OH F A
And in each instance you’d say that’s three feet long,
approximately; correct?
Weets....:
That’s what you just said.
I’d say that’s eighteen by twenty-four there.
We’ve had part of this a close-up. Does that help you
identify it a little better?
The same thing. I didn’t tell anybody that night that I
saw three-foot, eighteen-by-twenty-four bales.
You just said bales?
Absolutely. That’s all I needed to tell them.
Okay. Let’s mark this as the next exhibit. Let me show
you this photograph of an even closer picture of the
bale. Is this the type squared-off corner you’re talking
about?
[481] BYMR.McHUGH: Let’s have them marked
so the witness can identify
them.
Is that the squaring-off that you’re talking about?
I’m talking about by “‘squaring-off’, this here.
Not like that on that corner? Or is that a different angle?
That’s laying on the ground. I didn’t see anything laying
on the ground.
A-96
(481)
Q
(481)
So you can't help me with this?
No, I can't.
But that's a bale like you saw that
night, isn't it?
This is what I saw right here.
Is that a bale like you saw that
night?
I'd say it is.
BY MR. HALL: We'd offer these, "12",
"10" and “il”. tet
the record reflect
that he's identified
the bales that he's
certain were there--
in the truck as "10",
and the bale that
looked like what was
from the other batch
ae “ia.
A-97
(482)
(482)
I don't know what he means by "from
the other batch". He just asked me
before if that bale looked like one
of the other bales, and I said,
"Yes,"
So that's twelve. Thank you.
BY MR. HALL: Your Honor, could I
have about a two-
minute recess?
RECESS
So we can identify the dimensions
of the bale for His Honor better,
this line is approximately thirty-.
six inches; correct?
Right.
rove And when you said eighteen
inches, you're talking about from
the ground ....
To the top.
To the top; and the twenty-four
inches is across from --- you know,
actually parallel to the ground --
correct?
That's right.
A-98
(482) (483)
Q And the squared-off corners are as
you see it in the photograph;
correct?
A That's correct.
And that in your judgment is a bale
of marijuana?
A That's correct.
Q All right.
(483)
BY MR. HALL: We'd offer
"Exhibit Thirteen".
(Discussion off the record.)
Q Thirty-six inches; correct?
A Correct.
Q Twenty-four inches across; correct?
A Correct.
Q And twenty-four inches; correct?
A Correct.
Q All right. Square corners? Just
like this one?
A-99
(483) (484)
A That's very good.
BY MR. HALL: We would offer this.
Q Okay, come down here and open it up.
Tell us what you find in it.
(Witness complies.)
What do you find in it?
Peat moss.
oOo YF, AD PP
Now, let's open it up from the top.
Let's see what it says. I think
what it says is --- son of a gun.
It says, ‘Peat Moss , Commercially
Blocked."' And that’s the way it
looked that night; correct?
A That's correct.
So, for that matter, if the truck
had been filled with those bales,
you would have said bales of peat
moss were bales of marijuana; you
wouldn't have known?
(484)
A I knew it was bales of marijuana.
Q Sure. How did you know? You
couldn't see inside; and that bale
A-100
~
(484) (484)
is identical in size and shape to
ones you watched that night. How
did you know?
A Past experience.
Psychic, I guess.
BY MR. McHUGH: Objection.
Q Well, let's deal with objective
facts. An objective fact -- they're
identical -- correct?
A Very close.
Q So in terms of subjective facts,
you went there looking for mari-
juana and you were not looking for
peat moss; correct?
A No, sir, I didn't even go there
looking for marijuana.
Q But it is correct they look exactly
alike?
A Yes, sir.
BY MR. HALL: That's all I have.
A-101
(484) (488)
BY MR. KLEPPNER:
Q Referring to "D-10"', when you look-
ed in the back of that truck, was
that the extent of the bales in the
truck?
A No, sir. The first time?
Q Yes, the first time.
It was --- just guessing, I'd say
less than half full.
(488)
off on the surveillance units, that
they appeared to be going to back
up the trucks together; and that's
when the door on the eighteen-
wheeler opened up and we saw the
bales of marijuana inside; and the
bobtail truck started to back up,
and I called on the radio and told
him that the truck was already
loaded and to hold off on the sur-
veillance units, because they were
transferring the cargo from the
big truck to the little truck.
When the little truck pulled away,
there were more bales in the eigh-
teen-wheeler; and I corrected my-
self and told him that they were
not loading the little trucks, they
were loading the big truck with
bales of marijuana. Then I observed
A-102
(488) (489)
two of the people that are sitting
over there now run and start the
third truck, which they had trouble
getting started; and they finally
got that one started and backed
that one up to the eighteen-wheeler;
and I told him that they only had a
short time to go before they'd be
unloaded and probably be leaving
the area, that they'd better hurry
up, whatever they were doing; and
that's when Joachim said that 7
had obtained a warrant and would be
there momentarily.
Q How long after that information
from Joachim that they would be
there momentarily did they arrive?
A I'd say about five minutes.
Q I believe on direct examination
one point you testified -- that
the lights in the area were put
out?
A The lights on the house were put
out, and the trucks (489) were
driving around without lights.
Q Were there any lights at all in
sight at the time of the movement
of the cargo?
A There was the cargo light inside
the bobtail truck was on.
A-103
(489) (489)
Q Was this a momentary thing, or was
this on continuously?
A The light was on continuously,
but you couldn't see anything until
the bobtail truck pulled away from
the eighteen-wheeler. You could
see the -- it would light up the
inside of the eighteen-wheeler,
and you could see ....
Q The source of the light was where?
Inside the bobtail truck.
All right.
BY MR. BURKE:. I have no further
questions.
x
~ (Discussion off the record.)
= REDIRECT EXAMINATION
BY MR. ANDREW HALL:
Q Sir, we have a little confusion
in what you just said. The bobtails
--- the eighteen-wheeler, that
moved a few feet, a foot or two,
to get on the roadway; correct? The
first truck to move was the
eighteen-wheeler put on the road-
bed; right?
A-104
[500]
[500]
DIRECT EXAMINATION
BY MR. ALLEN HALL:
Q. Mr. Woodbury, please examine the original wrapping of
that package.
A (Witness complies.)
Qs Disregarding the outside visquine cover. Is this the original
packaging?
A_ Yes, it is.
Q__ Tell us what type of material this is.
Plastic.
BY MR. HALL: No further questions.
(Witness excused.)
BRENDA DUPUIS, HAVING BEEN CALLED AT THE IN-
STANCE OF THE DEFENSE, AND HAVING BEEN DULY
SWORN ACCORDING TO LAW, DID SAY:
DIRECT EXAMINATION
BY MR.. CHESTNEY:
Q Please state your name.
A Brenda Dupuis.
A-105
[500] [501]
Where do you live, Mrs. Dupuis?
Route |, Box 674, Breaux Bridge.
Is it Mrs. Dupuis?
Mrs.
What is your husband’s name?
Jeff.
Q
A
Q
A
Q
A
Q Jeff Dupuis. Is he one of the defendants in this case?
A Yes, sir.
Q__sIs he in the courtroom?
A Yes, sir.
Q Can you point him out to us?
A _ He’s the second one on the right.
BY MR.CHESTNEY: The record will reflect that
the witness has _ identified
the defendant Jeff Dupuis.
Q And your address is Route 1, Box 3 -—— what was it?
674.
Q__Is that located at the corner of Highway 349 and Parish
Road?
A Yes, sir.
A-106
[S01] (502)
Q_ Mrs. Dupuis, I’m going to hand you a photograph marked
A
,2)
~~ 2-2? & 2 Oo
ce)
— admitted into evidence as ““Defendants’ Exhibit Six”’
and ask you if you recognize the photograph or what is
pictured in the photograph?
Yes, sir. This is our house.
BY MR. CHESTNEY: Would the record reflect that
the witness has pointed to
the house located within the
shell driveway forming the
rectangle with the intersection
of Highway 349 and the parish
road.
Now, who lives there in that house with you, Mrs. Dupuis?
My husband, and I have two children and an elderly
grandfather.
And they all live in that home with you?
Yes, sir.
Now, who owns the property?
My husband.
Are you familiar with where the property extends?
Yes, sir. Our property goes back here to — I think this is
the ditch.
Would you show the judge the ditch?
Yes, sir. Right here (indicating). And then we’re bounded,
of course, on this side by the highway and by the parish
road, and then part of the boundary goes through some
— the trailer is sitting on some of our property here.
A-197
[502] [503]
Q
QO +» NH PP
>
©
And does it extend on back to ditch?
Yes, all the way back.
Now, you see on this photograph, Mrs. Dupuis, that
there’s some arrows drawn across in red ink and ending
with the number ‘‘2”’.
Yes, sir.
Is the number ‘‘2” located on your property or on your
husband’s property?
Yes, sir.
I’d like to show you another photograph. This has been
admitted into evidence as ‘Defendants’ Exhibit Seven’’.
Does this also reflect your home?
Yes, sir.
Do you see a red “X”’ marked on the photograph which
appears to be to the south of your home?
Yes, sir.
Is that ““X” located within your property?
Yes, sir.
Mrs. Dupuis, do you recall the night of June 15th and the
early morning hours of June 16th?
Yes, sir.
That was the night your husband was arrested, was it not?
Yes, sir.
A-108
[503] [504]
Q
A
Can you tell us the events that you recall that evening?
Well, I was — had just gone to bed and I was sleeping:
and the first thing I remembered, someone — well,
three were in my bedroom door and I was awakened
with a flashlight in my face; and then I heard running
through my house. You want me to finish all of it?
Go right ahead.
And they told me that I had to get up, that I was going
to be taken to St. Martinville Jail; and they took me
into my living room and talked to me some more.
BY MR. McHUGH:
>
Le)
Mrs. Dupuis, how long have you been living at that resi-
dence?
About two years.
And before that?
In Southhaven, Mississippi.
How long did you live there?
Five years.
You said you were living in this house, Route 1, Box 674,
for about two years?
Yes, sir. Approximately two years.
You live there with your husband and who else?
I have two children living there and my elderly grand-
father.
A-109
[506] [507]
Q Whois your elderly grandfather?
A Mr. Loston Coleman.
Q I’m going to show you “Defense Exhibit Seven’’. I see a
trailer.
A_ Yes, sir.
Q Now, you said something about the trailer not being on
your property?
A There’s just a small portion of the trailer on our property.
Q Where is your property line?
Well, it’s somewhere right around in there. I’m not sure
exactly where.
Q__ The property line goes along like this?
Well, yes, sir.
Q I’m going parallel to this State highway in front and
perpendicular to the parish road; right?
A (Witness indicates yes.)
And it goes through the trailer?
Well, just a small portion of the trailer. I don’t know
exactly ....
Q___ And how far does it goes this way to the south?
A _ It goes all the way to the ditch in the back.
A-110
[S507] [507]
a + © + © 2 © FF 2 2? © Ff @
>
Le)
All the way across this picture?
Yes, sir.
Do you know who this property belongs to?
Yes, sir.
It wouldn’t be one of Mr. Dupuis’ sisters, would it?
Yes, sir.
Wasn’t this part of a Dupuis estate that was divided?
Yes, sir.
And your husband got this part; correct?
Yes, sir.
Okay. Do you know who owns this property back here?
No, sir.
If I’m correct, you have a fence around your house, don’t
you?
Yes, sir.
Can you point that out to the Court?
Yes, sir. The fence goes here and here and there’s a small
portion of it back here (indicating).
Okay.
(Discussion off the record.)
A-111
[507] [508]
Q I’m going to show you what’s been marked ‘“‘State’s
Exhibit Number One”. Can you identify this photo-
graph?
A_ Yes, sir, that’s my house.
Le)
Now, I want you, if you would, to draw a red line where
the fence around your house is located.
The fence? Okay. It probably won’t be a straight line.
Do as best you can.
There’s a double gate right about here (indicating).
Why is that double gate there?
That’s so that I can drive my car through it.
Okay. You have a driveway there?
Yes, sir.
Okay. Where is that?
It’s right about in there somewhere (indicating).
Well, let’s put a little ‘““D’’ for “driveway”.
> © FF © FF DB F*- BO PF 07
Then the fence goes back here and then it goes right
about there.
©
Okay, thank you very much.
BY MR.McHUGH: For the record, let’s say the
fence runs perpendicular to the
State highway on the west side,
A-112
[508] [509]
Oo + OH FF
> O + HOH © HD P
indicated by a red line, along
the south side, and then in
a northerly direction partially
behind the house and on this
gravel road or shell road, what-
ever it’s been referred to.
BY MR. CHESTNEY: I believe you said it ran
perpendicular....
BY MR. McHUGH: Parallel to the State highway.
Now, did you tell me who lives in this trailer?
No, sir, but I will.
Okay. Who lives in it?
My mother and stepfather.
Do you know Mr. Davidson, who is a defendant in this
case?
Yes, sir.
Did he ever happen to live there?
Yes, sir.
Is he in the courtroom?
Yes, sir.
Can you point him out?
He is the fourth one on this side with the sunglasses on.
A-113
Powe
[509] [510]
Q
> O >» DO > OH FF AD PP
©
> © 2} © 2?
With the white shirt?
And the sweater.
Did you happen to see any of these other fellows on the
15th and 16th of June that are sitting back there?
Yes, sir.
Were they all there?
I don’t know.
You’ve seen them before?
Well, just here in the courtroom, that I can just remember.
But you do remember Mr. Davidson living in that trailer?
Oh, yes, sir.
Do you think he was living there on the 15th of June?
Yes, sir. He’s my stepfather. My mother and my step-
father lives there. Mr. Davidson is my stepfather.
Thank you. The night in question, was there a barbecue
in the back of the house?
Yes, sir.
Do you know how many people were there?
No, sir.
Why?
Well, I was in the house.
A1ll4
[510] [511]
Oo = © ? © 2? © PF @
> O >» OH + HD PC
©
You were in the house?
Yes, sir.
You didn’t participate in the barbecue?
No, sir.
Any of your children? Did they?
No, sir.
Do you know how long this barbecue went on?
No, sir.
Do you know if your husband participated in the barbe-
cue?
No, sir.
You don’t know?
Well, I....
Where was your husband at the time?
I guess he was outside.
You guess he was outside?
Yes, sir. I had gone in the house and I didn’t see him
anymore until ....
About what time had ycu gone in the house?
Well, I had been in the house all afternoon.
A-115
[S11] [S11]
Q
Oo FF @O- FF 2B
> ODO FF O FF 0D P
Did any of the gentlemen who were outside in the back
come into your home?
Not that I recall.
They all stayed outside?
Yes, sir,
Do you know how long they had been there?
No, sir.
Just think about it for a minute. Were they there in the
afternoon?
Well, I had been in town all day long since early that
morning, and I came home, and then I went to the
grocery store; so I don’t know exactly how long they
had been there.
Let’s say, when you came home from the grocery store,
do you remember what time that was?
No. It was late.
Was it still daylight?
Just barely.
Were the gentlemen there then?
Yes, sir.
Did you see any of them?
Well, I didn’t pay any attention to them.
x“ *
A-116
[519] [519]
a. - 8 2
a. eS + 6 ye OS oO > Oo >
[519] the trucks in your backyard?
No, sir.
You didn’t see any trucks?
No, sir.
Do you know what an eighteen-wheeler tractor-trailer
truck is?
Yes, sir.
And you didn’t notice that?
No, sir.
And you didn’t notice any short white aluminum trucks?
No, sir.
What time did you leave that day?
It was in the early morning.
You took your child?
No, sir, not that day.
Who was taking care of your child?
My niece,
This property to the south of your house here, showing
you “State’s Exhibit Number One’’, seems to be a
field with crops growing on it. Can you tell us what kind
of crops that is?
A-117
[519] [520]
nbn > ODA > BA F&F ODO P
That’s sugarcane.
Is that part of your husband’s property?
Yes, sir.
Who’s farming that, do you know?
Mr. Melancon.
How long has he been farming that?
I’m not sure.
Has he been farming it as long as you’ve been living there?
[520] A Yes, sir.
Q
A
Q
Oo +>» AH PF
Your husband is not farming it?
No, sir.
Now, you say you’re not certain when in time the men
were in your house as compared to when your husband
was arrested; is that correct?
Well, I know when the men were in my house.
But you’re not certain about what went on outside?
No, because I didn’t go out. They wouldn’t let me go out.
I’m going to show you “‘State’s Exhibit Number One”
again. I see this what you’ve drawn with a red line
indicating a fence. It seems like you have some shrubs
planted along there; correct?
A-118
[520] [521]
> © PF © F® @B PRP BO ®P
©
Q
A
Yes, sir.
Then toward the north you have — it looks like it’s open.
Yes, sir.
Who cuts this grass?
Myself and my husband.
Do you do anything with this cane field here?
No, sir.
How about in here around the trailer?
Well, my stepfather cuts around the trailer and then the
empty — the lot my husband cuts.
That’s around where the boat is?
Yes, sir.
You marked this “D”’ right here. That indicates the drive-
way where you put your car?
Yes, sir.
[521] BYMR.McHUGH: Your Honor, in connection with
the witness’ testimony I'd like
to offer and introduce this... .
BY MR. ANDREW HALL: No objection.
BY MR. CHESTNEY: No objection.
A-119
[S21] [522]
BY MR. McHUGH: I tender the witness, Your Honor.
(Discussion off the record.)
REDIRECT EXAMINATION
BY MR. KLEPPNER:
Q
QO PF 4 Ff 0 P
Mrs. Dupuis, does your husband do any other mechanical
work other than electrical work? ;
Mechanic work?
Does he work on cars and trucks or anything like that?
Yes, sir, sometimes.
Is this unusual, or does he often work on cars and trucks?
No, it’s not unusual.
Is it unusual for your husband to have around the house
or the yard cars and trucks belonging to various people?
[522] A No, sir, it’s not unusual.
Q
A
Is it unusual for him to have people in the vicinity of your
house that you don’t know personally?
No, sir, it’s not unusual.
I'd like to show you “State’s Exhibit One’’, if I may.
I'll ask you if the shell driveway around the outside
of the red line that you’ve marked ‘“‘fence”’ is on your
property?
‘A-120
[$22] | [523]
Yes, sir, it is.
Do you use it?
Yes, sir.
Does your husband use it?
Yes, sir.
Is it a public road or a private road?
It’s private.
Go + © ff ff fF GB ®&
Now, referring to the cane fields that Mr. McHugh men-
tioned, you stated that Mr. Melancon farms it; correct?
>
Yes, sir.
Q Does he operate or farm them by authority of you and
your husband?
A Oh, yes, sir.
Q Is it also correct that you and your husband regard those
cane fields as your private property?
A Yes, sir.
BY MR. KLEPPNER: I don’t have any other questions,
Your Honor.
[523] BY MR. CHESTNEY: Your Honor, the only thing I'd
like to do is make sure for the
record that the second driveway
A-121
[523] [529]
that the witness referred to is
identified; and in that regard I’d
like for the witness to just place
a “D-2” on the shell driveway
referred to.
A (Witness complies.)
BY MR.CHESTNEY: — Thank you.
BY MR.KLEPPNER: Your Honor, I’m going to at
this time object again to
recross on the part of Mr.
McHugh. I'd like to note it
for the record.
BY THE COURT: I’m going to overrule the
objection for the reasons I
made previously.
RECROSS EXAMINATION
BY MR. McHUGH:
[529] this yard or into the cane field
to the left. I was just wonder-
ing if there was or not.
A Well, it would have been, as well as I remember, some
stakes on the parish road line, but I’m not certain the
other way. Not to my knowledge. I don’t know.
(Witness excused.)
A-122
[529] [532]
CLARENCE THIBODEAUX, HAVING BEEN CALLED AT
THE INSTANCE OF THE DEFENSE, AND HAVING BEEN
DULY SWORN ACCORDING TO LAW, DID SAY:
DIRECT EXAMINATION
BY MR. CEDARS:
Q___ State your full name, please.
A Clarence Thibodeaux.
Q_ What is your address, Mr. Thibodeaux?
A Route 1, Box 192-K, St. Martinville, Louisiana.
Q What is your occupation?
A Ima surveyor and a civil engineer.
Q How long have you been engaged in that occupation?
A Surveying, about ten years; and as far as a registered
[532] A Yes.
Q__ Marked in the northeast corner is “‘HSE”’. What does that
stand for?
A This is the house of Jeff Dupuis.
Q___ Have you seen him in that house?
A Yes, I went in the house and talked to Jeff.
A-123
[532] [534]
Q
ae” oe ee ee ee
Also noted on the survey, sir, is notations, ‘“‘Sugarcane
Field”. How do you know that is a sugarcane field, sir?
Well, I’m familiar — I’m raised in this area and, also, I went
out there and checked it, myself; and it is a plowed
sugarcane field. They have the roots of the old cane.
On the southern part of the survey I see, also, the word
“Drainage Ditch’’; and what exactly is that?
There’s a bit draingage canal for irrigation purposes.
Approximately how deep?
Oh, a good ten feet deep.
You personally observed that?
Yes.
And what is on the south side of that drainage ditch?
Combination of pasture land and hog pen and also harvest-
ed corn field.
It’s not sugarcane field, is it?
No.
BY THE COURT: Did you ask Mr. Thibodeaux when
he made that survey?
[534] A Yeah, I see the black mark.
A-124
[534] [535]
Q_sIs this drainage ditch shown in that photograph below
that mark the same drainage ditch depicted?
A Yes.
Q. Does this drainage ditch form the southern boundary of
Mr. Dupuis’ property as you surveyed it?
A Yes, to the best of my knowledge.
BY MR. CEDARS: At this time I'd like to offer
into evidence ‘“‘Defendants’ Six-
teen” and “Seventeen” in con-
nection with Mr. Thibodeaux’s
testimony.
BY MR.McHUGH: No objection.
BY MR.CEDARS: We have no further questions,
Your Honor.
BY MR. KLEPPNER:
Q Mr. Thibodeaux, I’d like to ask you to again look at
“D-16” and tell me if the southern boundary of the
property, which you have labeled under the ownership
— or, at least, the property that you surveyed as de-
picted on “D-16”, if the southern boundary of that
property is marked by any clearly distinguishable
feature on the ground? And specifically referring to
the southern [535] boundary....
A Id say it’s the bank of that canal.
Qs The bank of the canal?
A-125
[537]
Q Is that easily recognizable on the ground?
A Yes, if you — you have to assume there’s a line. There’s
no set markers or anything other than an iron rod.
Q__ The drainage ditch is clearly seen.
A _ Right. There’s no fence.
BY MR. KLEPPNER:
BY MR. ALLEN HALL:
BY THE COURT:
BY MR. ALLEN HALL:
BY THE COURT:
I don’t have any other ques-
tions, Your Honor.
Your Honor, we present to the
Court certified copies of the
Act of Partition establishing
the property of Mr. Dupuis.
You have two there?
Yes, sir. Three people signed
one and the fourth signed the
other.
It’s in counterparts?
BY MR. ALLEN HALL: Yes, sir.
* *
a
legal description of the name of Noah Hayes is for the
same tract.
A Right.
A-126
(537) . (537)
Q Otherwise, it checks?
A It checks.
BY MR. ALLEN HALL: I have no
further ques-
tions.
BY MR. CHESTNEY: Your Honor, I
don't believe
the record re-
flects the num-
bers given to
those last two
documents ad-
mitted and to
which the wit-
ness was refer-
ring.
BY THE COURT: "18" and "18-A",
defense exhibits.
CROSS EXAMINATION
BY MR. McHUGH:
Q Clarence, the boundary markers
you're talking about, describe
them for the Court.
A Butch, that northwest boundar
marker is an iron pipe, and the
boundary marker for Tract "A" is
an iron rod -- which there's two
A-127
(537) (541)
iron rods. There's one
(541)
Q Can you see whether you did any
other work on the 9th or the 16th
that would refresh your memory?
A The map was made the 15th. I usu-
ally make my map before I set my
rods. In other words, everything
checks before I set my rods; so it
had to be after the 16th --- 15th
--- when was the 15th?
Q Thursday.
A Well, it probably was the last
Friday --- the next Friday.
Q All right. When you surveyed the
property this time, you said you
found a rod in the southwest
corner.
A I found a rod in the southeast cor-
ner of the estate. All I ran a sur-
vey was on the estate, itself.
Q Did you find this point?
I found an intersection of two
fences which I tied in, which I was
off about a foot; so I honored
Spike's survey on that, because he
had it recorded and ....
A-128
(541) (542)
Q You say there was a fence post
right there?
A Yes.
Q So this was a point that had been
marked?
Yes.
As private property?
Right.
oOo F- AD PY
Thank you.
BY MR. ALLEN HALL: No further
questions. Let
the record re-
flect that the
witness (542)
identified the
terminus of the
curve on Louisi-
and Highway 349
where the curve
and the straight
line meet.
BY MR. McHUGH: That's on the
west boundary?
BY MR. ALLEN HALL: That's on the
west boundary,
that's correct.
BY THE COURT: Where the curve
and the straight
line meet?
A-129
(542) (542)
BY MR. ALLEN HALL: Yes, Your Honor,
That's in the
proximity where
Officer Wade was
observing.
(Witness excused. )
CARL BLANCHARD, HAVING BEEN CALLED AT THE
INSTANCE OF THE DEFENSE, AND HAVING BEEN
DULY SWORN ACCORDING TO LAW, DID SAY:
DIRECT EXAMINATION
BY MR. ANDREW HALL:
Q Sir, please state your name.
A-130
(565) (565)
Q On the 15th of June, 1976 (1978),
did you have an occasion to be at
Region Two Narcotis in Lafayette?
A No, sir, I was in Opelousas on that
date.
Q Did you receive a call to come to
Lafayette?
A Yes, sir.
In response to that call, what
action did you take?
A I was notified over the radio to
meet with fellow officers at the
Hungry Hobo Restaurant in Henderson.
Q Did you do this?
A Yes, sir.
At this restaurant, what did you
do?
A I was briefed by the officers of
the possible marijuana-smugg ling
operation in the area there and
they showed me the area.
Q All right. When you say they show-
ed you the area, can you explain
that?
A Yes, sir. They brought me to a
residence that was located on La.
A-131
(565) (567)
349, consisting of a house and
there were two bobtails adn,a re-
frigerator van there.
Q How do you know this?
I was showed by the officers.
Q Were were you when you were showed
this?
A In the vehicle with them.
After you had made these observa-
tions, what did you do?
A I then made a moving surveillance
in my own vehicle.
Q For how long did you do this?
From 3:30 until around dark, which
would have been 7:30 or 8:00.
Q At that time, what did you do?
(567)
A Yes, sir.
Q After you made that report, what
did you do?
A After the initial contact with Sgt.
Trahan over the radio, we would
more or less keep the house under
surveillance and notify them of
A-132
(567) (567)
any strange activity going on.
Q What activity did you see at this
time?
A When we first went in?
Q When you first got in position.
A A barbecue going on with loud talk
and music in the area on the south
side of the residence more or less
between the house and our position.
Q How do you know there was a barbe-
que?
A We could see the smoke and smell
ss.
Q Approximately how long did this go
on?
A Until approximately 10:30 or a
quarter till 11:00.
Q Did anything happen to cause the
activity to be stopped?
A Yes, sir. When the barbeque was
over, the lights were turned off
in the area of the barbecue and one
subject or approximately two walk-
ed into the refrigerated van and
turned the refrigeration unit off.
A-133
(567) (568)
Q How were you able to see this?
A Through the Starlite scope.
Q Can you describe that scope to us?
A It's one-hand-held long tubular
type with an eye cup pressed
against your eye to activate it.
Q After the refrigeration unit was
turned off, what happened?
A The men returned to the area inside
the fence line. Approximately five
to ten minutes later, a vehicle
(568)
pulled into the driveway immediately
inside the fenced-in area.
Q All right, and then what happened?
We notified over the radio Sgt.
Trahan and Officer Wade of the
activity that the people were
starting to move around a bit.
Q After that transmission, what
activity occurred?
A A few minutes after this, all the
--- I say all of them --- all the
ones we could see that were around
the barbecue pit started walking
through the backyard toward the
A-134
(568) (568)
refrigerated van truck and the bob-
tail.
Q Okay. When they got in the vicinity
of these trucks, what activity did
you observe?
A The rear door of the refrigerated
van opened up. I was looking through
the Starlite scope. Then we moved
our position around so we could get
a good visibility inside the van
with the Starlite scope.
Q So you moved to another location?
Yes, sir. We were moving with the
personnel so we could kepp them
under good surveillance.
Q About how far away were you from
them at this next vantage point?
A From the refrigerated van?
760, Six.
Approximately thirty-five to forty
yards.
Q Now, through this Starlite scope,
can you see color?
A No, sir, everything is green.
A-135
(568) (570)
Q When the doors to the refrigerated
van were opened, what could you
see?
A I could see bales stacked inside
the refrigerated van,
(570)
the refrigerated van.
Q At this time, were you able to see
anything?
A Yes, sir. There was a light emit-
ting from the rear of the bobtail
van shining directly into the rear
of the refrigerated van where we
could see there were more bales
stacked in the refrigerated van
than prior to the bobtail backing
up to there.
Q What devices were you using at
this time to observe these bales?
A When the truck first pulled away,
I was looking with the naked eye.
Then I looked to see the bales in
there quite easily with my bino-
culars and adjusted them to my
eyes, and it was the bales stacked
roof-high on the rear side of the
door. In other words, there's more
bales than prior to the truck
backing up. We could see it very
distinctly.
A-136
(570) Ca7e)
Q Okay. How long were you able to
view this?
A Anywhere from fifty to seventy-
five seconds. They were pulling
away real slow from the refrigerated
van with the bobail.
Q Were any radio communications made
during this time?
A Yes, sir. Air Officer Wade was
talking over the radio eg
Sgt. Trahan and Air Officer Rick
up to date on the activity.
Q Did you, yourself, make any com-
munications over the radio.
A Yes, sir.
When was this?
A Up to this time, Air Officer Rick
had the radio and that was when
Sgt. Trahan was on the other
(572)
Q And what did you see with your
binoculars?
A The same thing I saw with my naked
eye -- burlap bales of marijuana.
A-137
(572)
(572)
BY MR. HALL: Objection, Your Honor.
That it was marijuana
is a conclusion. He
saw burlap bales is a
fact.
BY THE COURT: I think that's a
proper matter for
cross.
Have you seen bales like that
before?
Yea, sic.
In what instances have you seen
them?
Prior marijuana smuggling
operations.
And in those prior instances, what
was in the bales?
Marijuana.
The next thing that happened after
the first bobtail was pulled away--
what happened?
The first bobtail was then parked
to the side of the refrigerated
van to the rear, and the second
bobtail was approched by a couple
rd men and they attempted to crank
Ct.
A-138
(572) (575)
Q During this time, was anything done
to the doors of the eighteen-wheeler
truck?
A Not to my recollection. I don't
remember. I was concentrating on
the men closest to us.
Q How close were they to you?
A Fairly close. Twenty-five to
thirty yards away.
(575)
BY MR. ANDREW HALL:
Q Sir, referring to the picture that
you just identified, the trucks
were moved before that photograph
was taken and that's not the way
they were that night; is that
correct?
A The bobtail was pulled up slightly,
yes, sir.
Q The separation was farther apart?
Yes, sir.
Trooper Lejeune, let's go to the
day of the 15th when you arrived as
part of this organized activity.
You said that you were briefed by
your fellow officers on a possible
A-139
(575) (576)
marijuana smuggling operation. Can
you tell us who briefed you?
A Well, a couple of them, more or
less. Sgt. Trahan explained part of
it to me. Trooper Ronnie Theriot
explained some of it to me.
Q All right, let's start with Sgt.
Trahan. What did he explain to
you that day?
A He explained to me or told me what
to do.
Q Well, did he brief you? Did he
say that there's going to be a
large amount of marijuana there or
there the next day?
A No, sir. He explained we were to
keep the particular house under
surveillance and to report any
activity that seemed out of the
ordinary. We were to get any
license plates on vehicles that
might arrive or leave.
Q Let me get right to the point.
You indicated in your testimony
that you were told it was a mari-
juana-smuggling operation. Who
told you (576 there would be
marijuana there?
A We didn't know if it was there.
A-140
(576) ; (576)
Q Somebody said it might be there.
Who would that be?
A Possibly there; possibly waiting
for it, maybe arrived prior. That's
what we were there to find out.
Q You were there to find out, but you
thought marijuana would be involved
with those trucks and that house
that day?
A Yes, sir.
Okay; so it is correct, sir, that
when you arrived and started your
surveillance, you were looking for
marijuana; correct?
A Yes, sir.
So it's also correct that when you
saw the bales, you didn't at least
explore in your mind whether or not
they might be bales of other sub-
stances, did you?
A No, sir.
Q Okay. Now, sir, let's start with
activities between 3:30 and 7:30
in the day. When you say "roving
surveillance", that's driving up
and down the road, is it not?
A Yes, sir.
A-141
(576) (577)
Q So you never left the car during
those four hours?
A I might have. I don't recall.
It's a long period of time. I
might have stopped and got a Coke.
There was three or four cars on
surveillance.
Q I understand that, but you didn't
go onto the property?
A No, sir.
Okay. Then come around dark, there
was a change in your assignment?
A Yes, sir.
And who changed your assignment?
Q
A Sgt. Trahan.
Q
Sgt. Trahan instructed you to go
with Customs Officer Wade onto the
property; correct?
A No, sir, in a cane field adjoining
the property.
Q Adjoining the property; so you were
under the impression that the cane
field was not owned by Mr. Dupuis
when you went out there; correct?
A-142
(577) (577)
rN We were not aware of who owned it.
Q So you did not attempt to obtain
permission from the owner?
A No, sir.
Q Moreover, you weren't particularly
concerned about who owned it, you
just wanted to get a good surveil-
lance point?
A Yes, sir.
Q Now, you did indicate, sir, in your
testimony that your surveillance
was roving, moving.
A Yes, sir.
Q So that is that during this period
of time you were at a large number
of points; correct?
A Yes, sir.
Now, didn't you tell me the other
day when we were chatting that
you actually came out of the cane
field and onto that shell roadway
at least once?
A No, sir.
You didn't tell me that?
A-143
(577) (578)
A No, sir.
Q You didn't come up to the shell
road?
(578)
A I went to the ditch. I did not
come to the shell road.
Q I show you a photograph that has
been identified by your colleague
that night, Mr. Wade, referring to
“Defense Exhibit Seven". Now, you
were in this cane field here,
correct?
A Yes, sir.
Q But at times you came out of the
cane field closer?
A Yes, sir.
Q Show me the closest point you ever
got to that house.
A At the end of the cane field by the
ditch.
Q Right here?
I never got out of the line of the
cane field here. I stayed at the
edge of it, which the ditch passes
fairly close to the east end of the
ditch.
A-144
(578) (579)
Q Okay, so this lightened line re-
presents a ditch of sorts?
A I imagine, yes, sir.
Q And you actually got into that
ditch?
A No, sir. I stayed in the cane
field by the ditch. I never exited
the line where the cane field ended.
Q Your body was always on the edge of
the cane field?
A Inside the cane field.
Put a little mark to the closest
point that you came to the house.
A (Witness complies.)
BY MR. HALL: Let the record reflect
that the witness
placed a blue-colored
mark on "Defense Ex-
hibit Seven".
A There was a bicycle laying there,
because it scared me.
(579)
Q A child's bicycle?
A No, it was a big bicycle.
A-145
(579) (579)
Q So that was an area that these
people lived, inhabited and used?
A I have no idea.
Well, certainly you don't throw
bicycles in the cane field, do you?
A I don't.
Now, at the time that you were ob-
serving this house from the cane
field or the ditch, wherever you
were, you knew that these people
were engaged in personal and
private activity; correct?
BY MR. McHUGH: Objection, Your
Honor. That calls
for a conclusion on
the part of the
witness.
BY MR. HALL: No, I'm asking what
he knew and he saw.
BY THE COURT: Well, I think you
can say what he saw
is what he knew, but
it draws a conclu-
sion.
BY MR. HALL: All right, I'll be
glad to rephrase it.
Q You saw people engaged in a barbe-
que; correct?
A-146
Q
(583)
(583)
You heard music and voices?
BY MR. McHUGH: Your Honor, I'm
going to object.
This calls for an
opinion on the part
of the witness.
BY MR. HALL: Well, he lives
around here. He
knows people do
their truck-unload-
ing and loading at
night.
BY THE COURT: Well, I think what
the witness per-
ceived is important.
The objection is
overruled.
You live around here, don't you?
Yes, sir.
And you know that during summer men
load and unload trucks at night,
because it's cooler; don't you?
No, sir.
You don't know that? You've never
seen that?
A-147
(583)
CO © AD PF A
oOo FF» LAD PP
(584)
No, sir.
Did you ever see men do any physi-
cal work at night because it's
cooler?
Not for the simple reason it's
hotter, no, sir. It's hotter
during the day.
You just don't know.
No, sir. I'm not aware of that.
But there are men working at night?
Possibly could be, yes, sir.
And you've seen lots of men work-
ing at night at various (584)
times. Sure. Sometimes men load
and unload trucks at night, too,
don't they?
Yes, sir.
So that's not unusual at all.
I can't compare it.
Okay, but the mere fact that
people work on a truck at night
doesn't mean anything, does it?
Not by itself, no, sir.
Not by itself. Okay. So this
A-148
(584) (584)
point you moved the surveillance
closer, didn't you? Didn't you
kind of come back in when you saw
the men go back out toward the
truck? Is that when you went off
to the edge of the ditch?
A Just prior to that.
Q Just prior to that. It's at that
point that you saw into the back of
the eighteen-wheeler as they were
beginning to unload the first small
bobtail; correct?
A I don't think I caught the question.
Go ahead.
Q All right. In the plan of surveil-
lance, it was at that point that
you first observed inside the
eighteen-wheeler?
A 768, 622.
Q Okay; and until then, you didn't
know, other than being briefed that
there would be marijuana in some
way connected with that property
that night, or your people ex-
pected that, you didn't know whether
there was anything there or not;
correct?
A Not definitely, no, sir.
All right. Now you looked in the
A-149
(584) (585)
back of the truck (585) and you
saw the bales; correct?
A Yes, sir.
Could you see that through the
Starlite scope, or did you have to
wait until you got your binoculars
on before you could tell that?
A Well, you could see it was packaged,
but you could not tell the color of
the brown burlap through the night
scope.
Q All you knew was that there was a
packing material?
A 3668, siz.
Q Okay. So what you saw at that
point were bales stacked in the
back of the truck of a substance;
correct?
A When I saw them, I thought of the
only thing, bales of marijuana.
Q That's what came into your mind.
Yes, sir.
Q Because you were there to see mari-
juana, weren't you? That's the
only reason you were there.
A-150
(585) (586)
A If they wouldn't have told us to
be looking for bales of marijuana,
once I saw them that’s what was in
my mind.
Q I see. Okay. Now, sir, have you
ever looked inside a lawyer's
briefcase?
A A lawyer's briefcase?
Q Sure. Two or three times, haven't
you?
A It looks like anybody else's
briefcase.
Q Two or three times you've looked
inside a lawyer's briefcase?
A Approximately.
Q Okay. You've looked inside Mr.
McHugh's briefcase, (586) have
you?
A I don't remember.
BY MR. HALL: Would you (Mr. Mc-
Hugh) mind opening
your briefcase and
showing it to the
witness?
BY MR. McHUGH: (Complies.) Let
the record show
that I've showed
him.
A-151
(586) (586)
Q Some books, right, and papers?
A Correct.
Q Exactly what you'd expect in a
lawyer's briefcase.
A Yes, sir.
So if you saw that briefcase that
you knew belonged to a lawyer, you'd
expect papers and books; right?
A 7e6; O42.
Now, this, sir, is a lawyer's
briefcase. Tell me what's inside
se.
A I have no idea. I can't see inside
of it.
Q Well, that's true, because I told
my brother to put something in it
that I didn't know, either; so
let's find out together, shall we?
Money. That's good. I get to keep
it. The point is it's not papers
and books; correct?
A Yes, sir, if you say so.
Well, come and look for yourself.
Satisfy yourself, but don't take
the money. Okay?
A-152
(587) (587)
A (Witness complies.)
Q Only currency; correct? Only three
twenty-dollar bills; correct?
A Four.
Q Four?
BY MR. HALL: Judge, I object. My
brother held out on
me.
Q The point is, sir, there's no way
you can see inside this briefcase;
true?
A Correct.
Now, these bales that night were
sealed, each one of them, correct?
No, sir, not totally sealed.
Well, did you see marijuana?
Bursting at the seams.
oOo F- CD PY
ow at the seams. Did you
see inside the bales?
A You could see there was an opening,
but you couldn't see what was in-
side the bales.
Q You couldn't identify anything in-
side it; you just saw that it may-
A-153
(587) (588)
be was a little opened. Okay. Now,
let's talk about the other things
that sometimes help you identify
what might have been in the bale.
Was there an odor of marijuana?
A not from where I was.
Q You couldn't smell any, okay. Let's
go to the next question. Did you
see marijuana gleanings in the area?
A Not from where I was, I couldn't
see.
(588)
Q So all you saw were bales?
A 708, @if.
Q Now, you testified that you had
seen bales like this two or three
times in your experience -- actual
eyeball live experience?
A ree, sar.
Q Sir, in each of those two or three
times, that was after the arrests
had been made; correct?
A Yes, sir.
Q That was after there was a deter-
mination that the bales were filled
A-154
(588) (588)
with marijuana and you were walked
to those bales and it was said,
"Here are bales of marijuana and we
know there's marijuana in it," and
you could see the marijuana around
the area; true?
A Yes, sir.
Q And in each instance you could
smell the marijuana; true?
A Yes, sir.
In each instance, you saw marijuana
gleanings; true?
A Yes, sir.
Q And in each instance you knew in
fact when you saw those bales that
those bales had marijuana in then;
correct?
A Yes, sir.
Q Now, in this case --- by the way,
each one of those situations, there
were two or three?
A Two or three. I don't remember.
Q But in both of those or all three
of those situations they were in
broad daylight; correct?
A-155
(590) (590)
briefcase and I took the briefcase
out of the courtroom for five
minutes and came back in and said,
"This is a lawyer's briefcase,"
would you in the most important
of your personal affairs say, "It's
a lawyer's briefcase. It's got
books and papers in it," or would
you say, "It's a briefcase. The
contents I don't know''? Which would
you do?
A I would guess that there were books
and papers inside.
Q You'd guess. Exactly; and that's
because at least two times now
you've seen into this briefcase,
you've seen into mine and maybe
a few other briefcases from time
to time, and you would guess based
on the experience; but you wouldn't
know and you wouldn't be reasonable;
you'd just be guessing. True?
A Yes, sir, it'd be a guess.
Q All right; and the difference be-
tween you making a guess in that
circumstance and you guessing on
the night of June 15th was because
you were told by your fellow
officers that there would be mari-
juana involved in those trucks?
A We were looking for marijuana, yes,
Six.
A-156
(592) (592)
A Possibly, yes, sir.
Q How many of those officers were
around the vicinity, do you know?
A No, sir.
Was it at least five?
I'd be guessing.
BY MR. KLEPPNER: I don't have any
other questions,
Your Honor.
BY MR. VIDRINE:
Q Officer Lejeune, I think you testi-
fied that when you first began your
surveillance, you were conducting
a rolling surveillance; is that
correct?
A Yes, sir.
This began approximately what time
of the afternoon?
A 2:30, 3:00. That's when I got
there.
Q How long did you maintain the rol-
ling survey?
A-157
(590)
Q
(591)
And that was the difference. Thank
you,
BY MR. HALL: No further ques-
tions.
BY MR. KLEPPNER:
Q
Officer Lejeune, were you present
the night of the (591) arrest
itself? Were you there when the
defendants were arrested?
Other officers made the actual
arrests. I was in close proximity.
I was standing alongside the fence
when they were arrested.
Now, did you find any rollers in
those trucks?
Rollers?
Yes.
The rollers were stacked in the re-
frigerated van.
They were way at the front, weren't
they?
Yes, sir.
They were stacked at the very top
of the material, weren't they?
A-158
(591)
(592)
766, -82r.
Now, there were other police
officers stationed in and about
the property that was under surveil-
lance the night that you made the
arrests, weren't there?
I didn't make the arrests.
Well, the night that you made your
surveillance activities.
We had men scattered all over, yes,
sir.
They were positioned at various
points up and down the road,
weren't they?
Yes, sir.
And their purpose, I assume then,
was to wake a stop of any vehicles
that were leaving; is that right?
Not necessarily.
Were they to follow those vehicles?
If that's what the sergeant ordered,
yes, sir.
And if a stop were necessary, they
were right in a (592) osition to
accomplish it, weren't they?
A-159
(592) (593)
A Until just prior to being pu‘ on
foot.
Q So this was approximately at dusk?
After.
During the summer it gets dark
approximately around 8:00 or some-
thing like that?
A Yes, sir.
Q All right. During the course of
your rolling survey or surveillance,
how many times do you estimate that
you passed on the parish road and
on 349?
(593)
A Eight to twelve.
Q Okay. So this was every twenty
minutes or so you were going by,
given a four hour period?
A Periodically.
Or approximately every half hour
or something like that?
A Yes, sir.
That would be a reasunable esti-
mation?
A-160
(593) (593)
A Yes, sir.
Q As you made your rolling surveil-
lance, did you examine the property
carefully each time you went by the
surrounding area, the general area?
A 208 S28.
Q I think you testified that when you
entered the canefield when you were
put on foot, as you said, you came
in from the south? Is that what you
said?
A Well, I was put on foot on the east
side and walked around to the south
side.
Q You walked around from the east.
You were let off on what? The
parish blacktop, or on 349?
A The parish blacktop.
Then you walked around to the
south? Why didn't you just come
in from the opposite side, from the
state road?
A Too many houses in the area. I
didn't want to be let down there.
Q While you were making your sur-
veillance, walking around, driving,
whatever, did you ever notice
there was fencing on the other side?
A-161
(594) (594)
A The other side of what?
Q On the other side of the property
next to the state highway.
A ree, O42.
You did? What was growing in the
field at that time?
A Sugarcane.
Q About how high was the sugarcane
at this time, would you estimate?
A About three foot.
About three feet? Did you notice
any cows, horses, pigs or anything
around the neighborhood?
A No, sir.
Do you think the fence was there
to keep animals out?
A That's what the fences are for.
Does it also signify property lines
and boundaries? Did you ever con-
sider it might signify private
property?
A Possibly.
And, also, to keep people out?
A-162
(594) (595)
A Possibly.
Q Officer Lejeune, I'd like to show
to you 'Defendants' Exhibit Six-
teen''. The fencing I was question-
ing you about is this fencing here.
Do you recall this along this high-
way?
A I remember a board being there, yes,
sir, a fence line, a gate somewhere
around right here.
Q The fencing stops approximately
right at this point next to the
drive?
A Yes, sir, right next to the road-
way. I wouldn't consider it a
driveway.
Q In the shell roadway?
A Yes, sir.
Q About where?
A I don't think
Q
Are you sure that you didn't come
into the cane field from this side?
A Yes, sir.
A-163
(595)
You're positive?
Yes, sir.
Because of the fence?
Too many houses in the area.
How many houses are in that area?
Do you recall?
On the opposite side of La. 349
there's a number of them along
that little curve right there, if
I remember right.
One more question concerning the
line. Do you recall what the
southern boundary was?
The southern boundary?
Yes, sir.
If I remember right, it was a
gulley with a fence.
Would it be a drainage ditch?
Possibly.
It wasn't a little furrow which in-
dicated a place where sugarcane
grew?
Not to my recollection.
A-164
(595) (607)
Q Do you recall how deep the ditch
was?
A I didn't get in the ditch.
You were always within the property
lines of the ditch?
A Yes, sir. I was always to the
north of the ditch.
Q Officer Lejeune, I show you "'De-
fendants' Exhibit Seven". Do you
see the trailer?
(607)
A Yes, sir.
Q Where was the bicycle?
A At the edge of the cane.
Q
Referring to 'Defendants' Exhibit
Eight'' in evidence, where was the
bicycle?
A Somewhere along right here.
That's where you were?
A Yes, sir. Well I come from down
in here to the edge of the cane.
Q Put an "X" on that photograph
where where the bicycle was and
A-165
(607)
eo > OD PY
(607)
and a "Y'' where you were.
You want an "X" for the bike.
Yes, sir. Well, put a "B" for
"bike".
(Witness complies.)
It was laying on the side; correct?
Yes, sir, laying on the side.
And you were standing right next
to it?
Well, I came out a couple rows of
sugarcane down approximately here,
because I was in direct line of
the barbeque pit.
What you did is you snuck up in
that cane field near the bike and
looked into the house; correct?
No, sir. I couldn't see into the
house. I was trying to hear what
they were saying.
You were trying to hear what they
were saying?
Yes, sir.
A-166
(607)
(608)
BY MR. McHUGH: Let the record re-
flect that he put a
"B'"' where the bike
was and an "X".
BY MR. HALL: Your Honor, just so
we (608) can see
that ditch clearly
for relative circum-
stances, we offer
"Exhibit 20".
At that time, you were crouched
and you were trying to conceal
yourself, weren't you?
I was laying flat between the
furrows, yes, sir.
Flat on your fact with your head
up?
Yes, sir.
Now, while you were out in the
fields, were you standing straight
up, or were you trying to conceal
yourself?
Trying to conceal myself.
Never standing straight up?
Once in awhile to get the blood
circulating again.
A-167
(608) (633)
Q Well, why did Mr. Wade say yester-
day that you were always standing
up?
A I don't know why he said that.
Q It's not true, is it?
I have no idea. I was crouched
down a lot, laying down.
Q Thank you.
BY MR. HALL: No further ques-
tions.
(Witness excused. )
RECESS
(633) (633)
Q So what did you do?
A So I agreed to it. I said, "Okay,
we can get a warrant; but if it
comes to a point that they start
moving, I'm going to hit them;" so
we both agreed to get a telephonic
Warrant at the time.
A-168
(633) (633)
I went back. I went into the door.
I woke up Mrs. Hebert and asked her
to use the phone. She allowed us
in. I took the 400 Customs radio
portable and brought it inside the
house. Rick called Judge Magis-
trate in Abbeville, Mr. Hebert, I
believe....
Q During this time, who had the radio?
A I did.
Did you receive any more communi-
cations over the radio from the
surveillance?
A Yes, sir, I did. While Rick was
on the telephone obtaining a tele-
phonic search warrant or attempt-
ing to obtain a telephone search
warrant, Wade came on the air and
told me that they had moved the
other bobtail truck to the eighteen-
wheeler and that he could hear the
same noise -- bales being put on
the conveyor belt; and he corrected
himself and said, "They're not off-
loading from the eighteen-wheeler
into a small truck; what they're
doing is taking from the smaller
trucks and putting into the eight-
een-wheeler."
Q At this time, was any action taken?
I told Rick at that time --- I
A-169
(633) (638)
said, ‘What is the status on the
telephone warrant. I'm going to
hit it
(638)
that there would be marijuana
there or involved with that resi-
dence or those trucks that day;
correct?
A We felt there was going to be some-
thing happening.
Q Right. At that point, you took
the three teams and you set them up
for roadside surveillance; correct?
A Yes, sir.
Q And you took your drive by your-
self?
A Yes, sir.
And that's when you saw the eight-
een-wheeler personally?
A I saw it personally?
Q Yeah.
A Yes, sir.
Q
Now, so that we're clear, this is
somewhere around 2:30 in the after-
noon; correct?
A-170
(638) (639)
A No, sir. JI was advised at 2:30
that the eighteen-wheeler and the
two trucks were there. I didn't
see it personally until about 5:30
that afternoon.
Q Excuse me, I'm sorry. Now, when
you saw the eighteen-wheeler and
the two trucks there and all this
information, one other fact occur-
red, too -- you heard the refri-
gerator part of that trailer work-
ing, didn't you?
A Yes, sir.
And you said, "That tells me some-
thing.'' That tells me what? What
did it tell you?
A It told me that was one kind of
way of transporting marijuana.
Q Is it a common way of transporting
other vegetable (639) matter?
A. Yes, sir.
Is it a common way of transporting
animal livestock that's dead?
A Yes, sir.
As a matter of fact, it's a common
way of transporting any spoilable
matter in this country?
A-171
(639) (639)
A Yes, sir.
Q Now, so that we're clear about it,
this particular truck had been re-
gistered to Zerbe & Sons; isn't
that what you said?
A Yes, sir.
Zerbe & Sons is a trucking firm,
isn't it?
A I believe so, sir.
Q So it wouldn't be unusual for Zerbe
& Sons to have a trailer, in other
words, rented to transport marble,
copper, perishable items, whatever
they might be; correct?
A Partly correct.
Q But notwithstanding all of that,
you felt that that told you that
marijuana was going to be there and
to tighten up the surveillance?
A Yes, sir.
Q So you discounted all other lawful
activities in your own mind and you
said, "We are going to have mari-
juana here," true?
A Yes, sir.
A-172 1.
(639) (640)
Q Okay. And in order to make sure
there was no chance of losing this
case, there was no chance of es-
cape, you set up the people at the
scene in (640) such a way that
all exits from the property were
blocked; correct?
A Yes, sir; not blocked.
Q Observed?
Where if they departed there, we
could follow in on moving surveil-
lance.
Q You had a choice, actually. You
could either fall in or arrest
them. Correct? You could either
follow them in surveillance or stop
the movement? Isn't that correct?
That would have been your choice?
A Yes, sir.
So what is certain is that from
that point forward, escape was im-
possible, reasonably impossible
with the marijuana; you had the
trucks, for sure?
A Yes, sir; but at that time, we
didn't know the trucks contained
marijuana.
Q I see. Now, this is around 5:00 in
the evening and you thought things
A-173
(640)
were go pretty good. Now,
did you call up Mr. McHugh or any
member of his office, saying "We've
got an investigation going and we
think it's going to break. Be
available to help me get a search
warrant''?
No, sir.
Did any member of your team call Mr.
McHugh or any member of the District
Attorney's office to advise them of
that?
Not to my knowledge.
Did any member of your team call
His Honor or any other judge to
make arrangements for avilability
A-174
(641) (641)
to get a warrant, if a warrant was
needed?
A No, sir.
But you could have done all that?
Yeah; but at that time, we still
didn't know if they had marijuana...
Q Well, I appreciate that -- your being
cautious and prudent and conservative.
It wouldn't have been unreasonable or
even unrealistic for you to say "Judge,
if something happens, are you going to
be home tonight?" That wouldn't have
been bad, would it?
A It's not a common practice, because
we didn't have anything prior to when
it occurred.
Q All right. So at that point, at least,
you didn't think you had anything worth
considering or bothering either Mr.
McHugh or a judge about; correct?
A Correct.
2 Okay. So now you set up the sur-
veillance teams and you have the two
men in the field; correct?
A Yes, sir.
Did you bother to check out whether the
field that you put them in was Mr.
A-175
(641) (642)
> O PF
Dupuis' residence, that's his home,
that's his field?
It's just a field next to the resi-
dence. At the time, I didn't know
who owned it.
Did you care?
At the time?
Yeah.
BO, 84.
(642) (642)
Q
Did you tell the people --- did you
give them any instructions on how to
perform the surveillance -- that is,
"Don't look into private areas.
Don't invade their privacy"?
No, sir, I didn't have to, because I
felt both agents were -- had been
working narcotics long enough to know
what they could and could not do.
Now, so that we understand narcotics
agents, isn't it true that narcotics
is unique among law enforcement
officers and that's it so highly
competitive amongst the various
agencies involved?
Competitive between agents?
A-176
(642) (642)
Q Sure. Sure.
A No, sir, I don't --- not myself, per-
sonally.
Q No, but you're aware of that?
It may be.
Q It may be, or you're aware of it?
You've complained before about the
fact that the D.E.A. or Customs
wasn't cooperative and they were
trying to make their own case and
not helping you all out? You know
that.
A Sir, I work with all the agencies
very well.
Q That's you. You've never heard
that problem?
A No, sir. I'm sure other agencies
might have difficulties; myself,
personally, I don't.
Q That's unique to you, because you are
an easy guy to work with.
A Could be.
Q Now, at 11:00 at night you got the
first radio transmission saying the
refrigerator unit was
A-177
(647) (647)
A
Q
Oo rF- AD PP
State Police narcotics agent.
How long have you been a narcotics
agent?
Five years.
In connection with narcotics agents,
have you received any training; and,
if so, what?
I went through one week of basic
narcotic training in the State Police
Academy, two weeks in D.E.A. Academy,
and two other weeks in the D.E.A.
Academy.
BY MR. HALL: Same objection.
BY THE COURT: Just for the record,
it'll be made general,
and your objection to
my ruling is again
noted.
On the 15th of June, 1978, did you
have occasion to go to the residence
of Jeff Dupuis?
Yes, sir.
In that vicinity?
Yes, sir.
Where is that located?
A-178
(647) (648)
A On La. 349 in St. Martin Parish.
Q Had you been there on prior occasions?
A No, sir.
Q What was the purpose of you going
there on the 15th?
A To pull surveillance.
Q Under whose direction were you?
A Sgt. Trahan.
Q What type of surveillance did you
pull?
(648) | (648)
A Rolling surveillance and stationary
surveillance.
Q How long did this continue?
Through the afternoon and evening.
Could you describe to the Court any
vehicles that you saw at the Dupuis
residence at the time you started
your surveillance?
A The eighteen-wheeler and two bobtail
trucks.
Q Where were they situated?
A-179
(648) (648)
A
CO Fr A YF A PS
On the shell road which runs between
--- on the south side of the Dupuis
residence, back and on the east
side to the parish road --- the black-
top road.
How long did you maintain this sur-
veillance?
Well, off and on all afternoon.
Did you maintain contact with anyone
during this time?
Radio contact.
With who?
With the rest of the vehicles.
Who was in charge of this operation?
Sgt. Trahan was in charge of us.
Did you have anyone else with you
besides the State Police?
Yeah, we had U.S. Customs.
Did you have occasion after night-
fall to go to the Hungry*®Hobo?
Yes, sir.
Why did you go there?
A-180
(648) (654)
A To meet for plans for the execution
of the warrant.
Q What were your instructions?
(654) (654)
Q A few times. You had passed it on
other days; is that right?
A Yes, sir.
Q And had you generally seen other cars
around that residence?
A I've seen a couple there.
A couple of cars. How about trucks?
Had you seen trucks around there?
A No, sir.
You never saw trucks. Ever saw a
trailer around there?
A There was a trailer at one time.
Q A trailer at one other time. So this
was not anything unusual; is that
right?
A Not really.
Now, you stated that you placed
somebody under arrest when you got
there; is that right?
A-181
(648) (668)
A Yes, sir.
Q That was the first official act you
performed when you arrived; is that
right?
Yes, sir.
What did you arrest him for?
A
Q
A Possession.
Q Of what?
A
With intent of distribution of mari-
juana.
Did you find any marijuana on him?
Not on him, no, sir.
Q
A
Q Had you searched the trucks yet?
A No, sir.
Q
But you arrested him?
(668) (668)
Q On the 15th, I believe you said, you
were in the vicinity of the Dupuis
residence in Henderson?
A Yes, sir, I was.
Under whose instruction were you?
A-182
(668) (668)
A
Q
> O PF A
Sgt. Trahan.
And what were you conducting at that
time?
I was conducting a surveillance on
the residence of Jeff Dupuis, mainly
observing three trucks parked to the
rear of his residence. I was to
follow these trucks if they moved in
any way.
Did you have an occasion later that
evening to meet anyone at the
Hungry Hobo?
Yes, sir, I did.
Who did you meet there?
I met with Sgt. Trahan about --- a
little after 12:00 a.m.
Were you given any instructions?
Yes, sir, I was.
What were those instructions?
At that particular meeting, Sgt.
Trahan advised us that they had ob-
tained a telephonic search warrant,
that I was assigned with Trooper
Theriot to conduct a search of the
premises of Jeff Dupuis.
And at this point, what did you do?
A-183
(668) (669)
A At this point, myself and Trooper
Theriot proceeded on the parish
road, which is located on the north
side of the Dupuis residence, and we
stood by momentarily waiting a word
from Sgt. Trahan to proceed in and
execute the warrant.
Q How long after that did you receive
the order from
(669) (669)
Trooper Trahan?
A For a period of about two minutes we
waited on instructions to go ahead in.
Q And what did you do?
We drove down the parish road, made a
left turn into the circular driveway,
which goes behind the Jeff Dupuis
residence. I drove my unit to a
position adjacent to a tractor-trailer
rig which was parked there with a
smaller 20-foot bed GMC truck backed
up to it.
Q Once you got there, what action did
you take?
A Myself and Trooper Theriot disembarked
from our vehicles and proceeded towards
the trucks. As I was moving out, I
hollered, "This is the State Police;
everybody freeze."
A-184
(669) (686)
I then observed Trooper Theriot run-
ning on the opposite side of the
truck. He was chasing a subject and
I followed him for a short distance
and then I stopped realizing there
was no other suspects in that parti-
cular area.
I backtracked and went around the
truck. And as I approached the
tractor-trailer rig which was backed
up next end-to-end to this 20-foot-
bed enclosed-carrying GMC, I had a
headlamp on my head. As I shined it
in, I observed six white males stand-
ing in the rear of this cargo carry-
ing truck. I also observed bales of
suspecting marijuana in the rear of
the truck of the smaller truck and
the rear of the 18-wheeler of the
tractor-trailer rig was
(686) (686)
Q What were the lighting conditions on
the other instances?
A All of the arrests with the exception
of the ones in Beauregard were con-
ducted at night.
Q No, sir. When you were handling
these bales so that you could recog-
nize what a bale of marijuana looked
like, what were the lighting con-
ditions?
A-185
(686) (686)
A
Q
> O PP A
yo)
It was broad daylight.
Trooper Lamaire, when you went upon
that property, did you go upon the
property pursuant to a search warrant
that you understood was issued?
Yes, sir.
When you came upon the property, what
trucks did you see?
I saw the tractor-trailer rig, which
is --- and there was two what-we-call
bobtails or 20-foot bed cargo carry-
ing trucks.
When you came upon the property did
you open and look inside the cab of
those trucks to see if there was any-
body there at any time during ---
Not until after I had effected the
arrests of the six defendants.
But you did look?
Yes, sir, I did at a later time.
Did you find anybody there?
Not inside the trucks---in the cab of
the truck, no, sir.
Did you find any keys in the cabs?
I didn't look for any keys.
A-186
(686) (687)
Q Did you find any keys?
(687) (687)
A No, sir, I didn't.
Q Were the lights on?
A Inside the cab, yes, sir.
Q Inside the cab?
A Inside the cab, yes, sir.
Q But not the headlights on the trucks?
A I don't know if there were any head-
lights on the trucks.
Q None at all? You mean the trucks
could not run at night?
A There were headlights on it, but
they weren't lit.
Q Thank you. Were the engines running?
A No, sir, they weren't.
Was there any appearance at all that
those trucks were going to move out?
A Not at that time, no, sir.
BY MR. HALL: No further questions.
One more question,
excuse me.
A-187
VOL. IV
Court, U.S
EILED
IN THE
AEL RODAK, JR., CLERN
Supreme Court of the United
OCTOBER TERM, 1979
CS
No. 79 -2045
JEFF H. DUPUIS, BERNIS H. DAVISON
JOHN ZERBE and WILBUR L. SMITH
Petitioners
VERSUS
STATE OF LOUISIANA
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF LOUISIANA
GRISBAUM & KLEPPNER
FERDINAND J. KLEPPNER
Professional Building
3224 North Turnbull Drive
Metairie, Louisiana 70002
ATTORNEYS FOR PETITIONERS
IDLE LEE LTTE Ea SES
(687) (688)
Q
A
Trooper Lamaire, who called Mr.
McHugh-- Mr. Butch McHugh?
I have no idea.
When did he arrive at the scene?
It was some time after the arrests
were actually effected.
How long after the arrests?
I don't recall. I was busy with the
defendants.
Yes, sir. But it was still while you
were processing the arrests?
Yes, sir. He came in, I was still,
you know, taking
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> DOD Ff BD YF A
care of making the arrests.
Would you say within the half-hour?
I couldn't really say.
Within an hour?
Probably within an hour.
For sure within an hour?
Not for sure.
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Q I understand.
A I wasn't paying any attention to Mr.
McHugh.
Q But he was there?
A I did see him, yes, sir, that night.
BY MR. HALL: Thank you.
BY MR. KLEPPNER:
Q Trooper Lamaire, when you turned into
that circular driveway at the Dupuis
residence, did you see the boat
parked near any of those trucks?
A There was a small speed hull type of
Q On a trailer?
Yes, sir.
Q So, it was right there by the trucks,
too, wasn't it?
A It wasn't far from it.
In the same general vicinity of that
driveway, right?
A Yes, sir.
And you did state previously didn't
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you, that you had passed the residence
a number of times during the day; is
that right?
(689) (689)
A Yes, sir.
Q On those occasions you saw more
vehicles than just those trucks,
didn't you?
A Yes, sir.
Q Cars around the place?
A There was some cars in the driveway.
Q Was a boat there?
A There's a boat in the backyard.
Q Near the trucks, wasn't it?
A Yes, sir.
Q How many cars did you see?
A I don't recall. They kept coming
and going various times during the
day.
Q So, it was a general pattern of move-
ment; is that correct?
A Yes, sir.
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(689) (690)
Q Had you ever passed that residence on
any other day before the 15th of June?
A I don't recall if I drove by it. I
passed over it in a helicopter on a
few times.
Q On those occasions did you see
vehicles parked in the vicinity
coming and going?
A There were cars at the residence, yes,
sir.
Q Did you ever see any trucks there?
The first time I saw trucks was the
evening that I was assigned to work
the surveillance.
Q That was the 15th?
A Yes, sir.
Q You had never seen trucks before there?
A No, sir.
(690) (690)
Q How many times did you pass over that
residence in a helicopter before that
day?
A Probably two times.
A-19]
(690) (690)
Q
Now, on the times that you passed the
residence on the 15th and you saw the
trucks and the boats and all out in
the driveway, did you see any bales?
No, sir.
Immediately when you drove into the
driveway to make the arrest, did you
see any bales?
No, sir.
When you walked up to the trucks, or
at least when you attempted to chase
down one of the suspects or assist
the trooper chasing him down, did you
see any bales?
When I approached the truck, yes, sir,
I saw bales.
At what point were you standing when
you saw those bales?
I was standing right at the rear of
both vehicles looking at the defen-
dants.
As a matter of fact in order to get
a view--good view of the bales, you
had to move the trucks, didn't you?
No, sir. I got a good view when I
stuck my head in there.
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(690) (745)
Q You got a good view when you stuck
your head in there?
A Yes, sir.
BY MR. KLEPPNER: I don't have any
other question.
(745) (745)
REASONS FOR JUDGMENT
BY THE COURT:
Evidence on the Motion to Suppress
Evidence has been taken. Counsel
have argued and the Court will now
render its judgment and the reasons
for it.
I think first of all I should discuss
the federal warrant issued by Magis-
trate Hebert. The State abandoned
any reliance it may have had on that
warrant. So, it is really unnecessary
for this Court to comment on it, ex-
cept for two things which I feel
Warrant comment.
First of all for the record and so
there is no question about it, the
Court will rule that the warrant is
invalid and consider any and all
arrests, searches and seizures in
this matter as having been made with-
out a warrant. I think in view of
the State's position I don't have to
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give any further reason for that
ruling.
The second comment I want to make has
to do with the strong urging by
defense counsel that Agent Joachim
intended to falsify and perpetrate a
fraud upon both Magistrate Hebert and
this Court or jaashes either of us.
I'm frankly suprised at the argument,
as I want to comment for the record
that I didn't receive his testimony
that way at all, nor do I view his
disclosures to Magistrate Hebert in
support of the warrant in that way.
Both these men, the magistrate and the
agent, were dealing at the time with
a new and novel legal device and it
was the first experience for each.
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One was acting in the excitement over
the event in apparent need for haste
and the other was awakened from
slumber in the middle of the night.
caine Neither were at their best. But I
think both and not only the agent
were responsible for the quality of
their produce.
Mr. Joachim admitted errors in his
disclosures. He admitted he assumed
certain things. But this Court
doesn't question the good faith that
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he had in making those disclosures.
And while I do find a variance between
the tape and the transcription of it,
I find the variance rather insignifi-
cant. The tape is of poor quality.
It is hard to hear. I find no
evidence of an intent to distort any-
thing in there.
Finally, in answer to Mr. Hall's
question in rebuttal argument as to
Joachim's veracity in which Mr. Hall
asked how could Mr. Joachim think all
the trucks were empty, then tell
Magistrate Hebert that the truck had
eo the marijuana off of this plane,
find that question easy to answer.
He had learned or at least he had ob-
tained information that the trucks
contained a cargo by the time he spoke
to Magistrate Hebert. Initially he
was operating under a different
assumption according to his own testi-
mony. Well, enough of that.
The warrant will have no place in these
proceedings, anyway.
Let me comment briefly about the use of
hearsay evidence in probable cause
determinations. While
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this question wasn't addressed very
much in argument, there are objections
in the record to the admissibility of
this type of evidence. So, it's
necessary, I think, that I comment.
The test for determining probable
cause for an arrest, search and
seizure without a warrant is’ the
same as that for a warrant. The
jurisprudence is legion that this
can be based intkeste on hearsay
evidence as long as the information
provided must set forth underlyin
circumstances and details to provide
a substantial, factual basis on which
to find it reliable. I cite STATE V.
HYSELL, a Louisiana Supreme Court
case decided on November 20 of this
year bearing Docket Number 62,152 of
that court. I don't have any other
citation. MATLOCK VS. UNITED STATES,
41 U.S. 164; U.S. VS. LEE, Fifth Cir-
cuit, 541 Federal 2nd 1145 and DRAPER
VS. U.S., 79 Supreme Court, Page 329.
Before the Court can determine
whether that hearsay evidence is based
on information setting forth the
underlying circumstances and details
to provide a substantial factual
basis on which to find it reliable,
you first of all have to listen to
the evidence. That is why I allowed
the hearsay evidence on this question,
but on this question alone, and I am
confident that my ruling is correct.
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Moving on to the issue that has to be
decided, it is going to be basically
in three parts. The first involves
the question of privacy and whether
(748) | (748)
there was an invasion thereof. The
second involves probable cause and
the third exigent circumstances.
This is a difficult area of the law
to work in. As all counsel know,
there are many decisions. There are
apparent conflicts in the jurispru-
dence. There is no test that can be
applied to every factual situation.
Because of these things and because
we have a unique factual situation
in this case that really isn't dupli-
cated that I can find in the juris-
prudence, State or Federal. I have
considered all authorities which were
brought to my attention by all counsel
and I have done independant research
of my own to try to resolve this
issue properly.
So that there won't be any suspects,
let me announce at this time that I'm
going to deny the Motion to Suppress.
I'll now say why.
The Fourth Amendment to the United
States Constitution protects people
not places. KATZ VS U.S., 389 U.S.
347: society values the individual's
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reasonable expectation of privacy.
And so that is what the Constitution
protects. STATE VS. HINES & MURRAY,
323 So.2nd, 449; U.S. VS. SANTANA, 96
Supreme Court 2406. The Constitution
of Louisiana provides the same pro-
tection and in fact as suggested by
counsel is somewhat more generous
than the Federal Constitution in its
extension of protection of privacy.
However, the principles that I just
announced apply in both.
In HESTER VS. UNITED STATES, 44
Supreme Court at Page 445 in the case
where officers concealed
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themselves apparently on the property
of either the defendant or his father
and observed activities which lead to
a search and seizure from about 50 to
100 yards away, when they had no
warrant for a search or an arrest.
United States Supreme Court held that
there was no invasion of privacy and
used this language: "Apart from the
justificat
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